Interests in the Home
a. Typical Situations
- Breakdown of relationship
- When one party dies
- Where property is subject to a mortgage or an unsecured debt
b. Methods
- Express trust
- Resulting trust
- Common intention constructive trust
- Consider the acquisition question & the quantification question
c. Express Trust
- Requires express declaration in signed writing [s.53(1)(b) LPA 1925]
- Goodman v Gallant
o If the parties expressly declare a trust, the declaration is conclusive as to
existence and to quantities of the share
- However, case law has diverged
- Stack v Dowden
o Declaration of trust may be overturned in cases of fraud or mistake
o May be varied by later arrangement or affected by proprietary estoppel
d. Joint vs Sole Legal Ownership
- Actual, inferred or imputed intention
o Inferred: From the ways that the parties act courts infer a common intention
o Imputed: When there is no basis for finding common intention court supplies
the common intention
o Unable to impute intention at the acquisition stage, only possible at the
quantification stage
Sole Legal Owners
- Equity follows the law: If they are sole owner at common law, they are sole owner in
equity
- Consider both the acquisition & quantification question
e. Joint Legal Owners
- Equity follows the law: If they are JT at common law, they are JT in equity
- When legal title to the property vests in both parties, there is already a trust [since all
a. Typical Situations
- Breakdown of relationship
- When one party dies
- Where property is subject to a mortgage or an unsecured debt
b. Methods
- Express trust
- Resulting trust
- Common intention constructive trust
- Consider the acquisition question & the quantification question
c. Express Trust
- Requires express declaration in signed writing [s.53(1)(b) LPA 1925]
- Goodman v Gallant
o If the parties expressly declare a trust, the declaration is conclusive as to
existence and to quantities of the share
- However, case law has diverged
- Stack v Dowden
o Declaration of trust may be overturned in cases of fraud or mistake
o May be varied by later arrangement or affected by proprietary estoppel
d. Joint vs Sole Legal Ownership
- Actual, inferred or imputed intention
o Inferred: From the ways that the parties act courts infer a common intention
o Imputed: When there is no basis for finding common intention court supplies
the common intention
o Unable to impute intention at the acquisition stage, only possible at the
quantification stage
Sole Legal Owners
- Equity follows the law: If they are sole owner at common law, they are sole owner in
equity
- Consider both the acquisition & quantification question
e. Joint Legal Owners
- Equity follows the law: If they are JT at common law, they are JT in equity
- When legal title to the property vests in both parties, there is already a trust [since all
