COMMON INTENTION CONSTRUCTIVE TRUST PROBLEM
QUESTION UPDATED ACTUAL QUESTIONS AND
CORRECT ANSWERS
Question:
1. Formalities
Answer:
At law, there may only be a joint tenancy: Law of Property Act 1925, ss 34, 36. This means tenancies in
common can only exist in equity under a trust. Normally, one must declare such trusts expressly using the
appropriate formalities (signed writing): Law of Property Act 1925, s 53(1)(b) Law of Property
(Miscellaneous Provisions) Act 1989, s 2. There has always been an exception from the need for
formalities for resulting and constructive trusts: Law of Property Act 1925, s 53(2) Statute of Frauds 1677
(29 Car 2 c 3) ss 7, 8 but when will CICT ARISE?
Question:
2. Introduction
Answer:
Who am I acting for? What do I want? What are the best ways to do this? (beneficial interest- what are
their strongest arguments?)- USE SUBHEADINGS. Do they want more than 50/50 (joint tenancy) or any
percentage at all (single legal owner) or avoid someone getting something
Question:
3. Initial points
Answer:
1. Regardless of if it is a single or joint legal title, the beneficial writing may have been expressed
expressly in writing, so that it will be held on express trust.
2. Presumptions: joint tenancy or single legal owner? If no express trust, it is assumed that the beneficial
interest mirrors the legal one- consistent with the maxim 'equity follows the law' (Stack). Look to the legal
titles. I.e. if sole owner case, presumed that the party has the sole beneficial interest and the other party has
none. Thompson v Hurst. Where the property is registered in both names, (only a joint tenancy) it is
presumed that both have interests held in legal shares. Stack v Dowden. Not married so beneficial interest
via a common intention constructive trust
Question:
4. Initial Points 2
Answer:
The emergence of two distinct stages: must go through both when working out the reasoning to any CICT
question
1) Acquisition stage : is there a CICT in the first place? Is a beneficial interest acquired under a single legal
owner case? (Rosset for single legal owner) or Stack v Dowden for joint legal owners. Is detrimental
reliance even needed?
2) Quantification stage- follows Midland Bank so it is flexible but not as flexible as Oxley. Stack and
Jones govern this now. A constructive trust means the understanding is enforceable without signed writing.
Question:
5. What cases to assess and see which facts are similar? analyse off that
, Answer:
Stack v Dowden, Jones v Kernott, Rosset v Lloyds Bank - speak of weaknesses/ arguments against them
after
Question:
6. If a single legal owner...
Answer:
start with Rosset as a leading single owner case- person proving has the burden of proof. However, state
afterwards that it could be distinguished on the basis that it involves a house (This would be a main
argument against using it as considerations are different)
Question:
7. Rosset facts
Answer:
facts: leading single owner case. In this case, bought a semi-derelict house. It was put in his sole name due
to wishes from someone he had inherited money from. Mr Rosset secured the mortgage which was in hi =s
name alone. She did not contribute financially at all. After they broke up, he moved out and left her there.
He didn't keep up mortgage on the house and the bank moved in for possessiona focus on financial
contributions.
Question:
8. Rosset test
Answer:
Used when it concerns single legal owner, Banks, joint tenants as obiter dicta: Established from the
beginning in Gissing v Gissing (detrimental reliance established), reinstated in Rosset: Lord Bridge set out
two bases upon which a cohabitant may acquire an interest in a property in the sole name of their partner,
namely:
• (1) That there has been an agreement, arrangement or understanding reached between them that the
property would be shared beneficially and that he or she has acted to his or her detriment or significantly
altered his or her position in reliance on the agreement, to give rise to a constructive trust or proprietary
estoppel. (or contributions to purchase price)
• (2) Where there is no evidence of (1) above and where court must rely on conduct of the parties as a basis
from which to infer a common intention to share the property beneficially, giving rise to a constructive
trust.
Question:
9. Rosset 2
Answer:
Rosset focuses on financial contributions and does not recognise usage of a family home as giving rise to a
beneficial interest. Narrow. Based on express discussions between parties. 'it must be based on evidence of
express discussions between the parties however imperfectly remembered and how imprecise the terms
may have been'. Says that an agreement to live in the property together or to renovate it as a joint venture
doesn't mean there is a common intention for a beneficial interestshe did nothing beyond the ordinary- she
would of done it anyway. Can see by application cases. Wife loses
Question:
10. application cases for Rosset:
QUESTION UPDATED ACTUAL QUESTIONS AND
CORRECT ANSWERS
Question:
1. Formalities
Answer:
At law, there may only be a joint tenancy: Law of Property Act 1925, ss 34, 36. This means tenancies in
common can only exist in equity under a trust. Normally, one must declare such trusts expressly using the
appropriate formalities (signed writing): Law of Property Act 1925, s 53(1)(b) Law of Property
(Miscellaneous Provisions) Act 1989, s 2. There has always been an exception from the need for
formalities for resulting and constructive trusts: Law of Property Act 1925, s 53(2) Statute of Frauds 1677
(29 Car 2 c 3) ss 7, 8 but when will CICT ARISE?
Question:
2. Introduction
Answer:
Who am I acting for? What do I want? What are the best ways to do this? (beneficial interest- what are
their strongest arguments?)- USE SUBHEADINGS. Do they want more than 50/50 (joint tenancy) or any
percentage at all (single legal owner) or avoid someone getting something
Question:
3. Initial points
Answer:
1. Regardless of if it is a single or joint legal title, the beneficial writing may have been expressed
expressly in writing, so that it will be held on express trust.
2. Presumptions: joint tenancy or single legal owner? If no express trust, it is assumed that the beneficial
interest mirrors the legal one- consistent with the maxim 'equity follows the law' (Stack). Look to the legal
titles. I.e. if sole owner case, presumed that the party has the sole beneficial interest and the other party has
none. Thompson v Hurst. Where the property is registered in both names, (only a joint tenancy) it is
presumed that both have interests held in legal shares. Stack v Dowden. Not married so beneficial interest
via a common intention constructive trust
Question:
4. Initial Points 2
Answer:
The emergence of two distinct stages: must go through both when working out the reasoning to any CICT
question
1) Acquisition stage : is there a CICT in the first place? Is a beneficial interest acquired under a single legal
owner case? (Rosset for single legal owner) or Stack v Dowden for joint legal owners. Is detrimental
reliance even needed?
2) Quantification stage- follows Midland Bank so it is flexible but not as flexible as Oxley. Stack and
Jones govern this now. A constructive trust means the understanding is enforceable without signed writing.
Question:
5. What cases to assess and see which facts are similar? analyse off that
, Answer:
Stack v Dowden, Jones v Kernott, Rosset v Lloyds Bank - speak of weaknesses/ arguments against them
after
Question:
6. If a single legal owner...
Answer:
start with Rosset as a leading single owner case- person proving has the burden of proof. However, state
afterwards that it could be distinguished on the basis that it involves a house (This would be a main
argument against using it as considerations are different)
Question:
7. Rosset facts
Answer:
facts: leading single owner case. In this case, bought a semi-derelict house. It was put in his sole name due
to wishes from someone he had inherited money from. Mr Rosset secured the mortgage which was in hi =s
name alone. She did not contribute financially at all. After they broke up, he moved out and left her there.
He didn't keep up mortgage on the house and the bank moved in for possessiona focus on financial
contributions.
Question:
8. Rosset test
Answer:
Used when it concerns single legal owner, Banks, joint tenants as obiter dicta: Established from the
beginning in Gissing v Gissing (detrimental reliance established), reinstated in Rosset: Lord Bridge set out
two bases upon which a cohabitant may acquire an interest in a property in the sole name of their partner,
namely:
• (1) That there has been an agreement, arrangement or understanding reached between them that the
property would be shared beneficially and that he or she has acted to his or her detriment or significantly
altered his or her position in reliance on the agreement, to give rise to a constructive trust or proprietary
estoppel. (or contributions to purchase price)
• (2) Where there is no evidence of (1) above and where court must rely on conduct of the parties as a basis
from which to infer a common intention to share the property beneficially, giving rise to a constructive
trust.
Question:
9. Rosset 2
Answer:
Rosset focuses on financial contributions and does not recognise usage of a family home as giving rise to a
beneficial interest. Narrow. Based on express discussions between parties. 'it must be based on evidence of
express discussions between the parties however imperfectly remembered and how imprecise the terms
may have been'. Says that an agreement to live in the property together or to renovate it as a joint venture
doesn't mean there is a common intention for a beneficial interestshe did nothing beyond the ordinary- she
would of done it anyway. Can see by application cases. Wife loses
Question:
10. application cases for Rosset:
