Date: 23/03/23
E&T: TUTORIAL 4
- Implied trusts: family property
- Constructive trusts: principally relevant in the context of
unmarried couples, there will be circumstances when it is
possible for them to apply to a married couples. This will occur
if a third-party lender has security over the marital home, as
happened in the case of Lloyds Bank v Rosset.
Establishing a constructive trust: Actual common intention You
either have to show that there was some discussion between the
parties, which gave rise to an agreement or understanding that there
was to be a degree of shared ownership by both parties. This
constitutes actual common intention.
Inferred common intention: Alternatively, common intention could
be inferred from the conduct of the parties. Lord Bridge suggested
that the only conduct evidencing an inferred common intention to
share the ownership of the property was a direct financial
contribution by the non-owning party to the purchase price of the
property either initially at the time of the purchase or, subsequently,
by the payment of mortgage instalments.
Detrimental reliance: As well as establishing the common intention,
whether by express agreement or by inference, the claimant also has
to be able to evidence that they suffered detriment relying on that
common intention.
In 2020, in O’Neill v Holland, the Court of Appeal confirmed that:
- Detrimental reliance remained an essential part of any
constructive trust claim, and
- What constituted detriment was to be objectively determined.
Quantification of shares: The payment of the mortgage will also be
sufficient to show detrimental reliance on this common intention.
E&T: TUTORIAL 4
- Implied trusts: family property
- Constructive trusts: principally relevant in the context of
unmarried couples, there will be circumstances when it is
possible for them to apply to a married couples. This will occur
if a third-party lender has security over the marital home, as
happened in the case of Lloyds Bank v Rosset.
Establishing a constructive trust: Actual common intention You
either have to show that there was some discussion between the
parties, which gave rise to an agreement or understanding that there
was to be a degree of shared ownership by both parties. This
constitutes actual common intention.
Inferred common intention: Alternatively, common intention could
be inferred from the conduct of the parties. Lord Bridge suggested
that the only conduct evidencing an inferred common intention to
share the ownership of the property was a direct financial
contribution by the non-owning party to the purchase price of the
property either initially at the time of the purchase or, subsequently,
by the payment of mortgage instalments.
Detrimental reliance: As well as establishing the common intention,
whether by express agreement or by inference, the claimant also has
to be able to evidence that they suffered detriment relying on that
common intention.
In 2020, in O’Neill v Holland, the Court of Appeal confirmed that:
- Detrimental reliance remained an essential part of any
constructive trust claim, and
- What constituted detriment was to be objectively determined.
Quantification of shares: The payment of the mortgage will also be
sufficient to show detrimental reliance on this common intention.
