Topic 7 — Interests in the Family Home: Constructive Trusts
A complete study guide synthesising the LPA 1925 extracts, the Bevan textbook
chapter, Mills' Conv. 2018 article, and the lecturer's seminar framework
⭐ LECTURER'S FRAMEWORK — Use this structure for problem questions
Threshold point
The CICT falls within the s.53(2) LPA 1925 exception — no formalities required. Strong
knowledge of case law (and its application) is therefore essential.
First, identify the type of case
Sole name case = 1 legal owner
Joint names case = 2 or more legal owners
The presumptions differ, so this classification drives everything that follows.
STAGE 1 — Acquisition (sole name) OR Intention to Vary (joint names)
Sole name cases
Presumption: equity follows the law (Stack v Dowden) — the person NOT on the legal title
is not automatically entitled to an equitable interest.
Burden: on the non-owner to prove they have acquired an interest.
Apply Lloyds Bank v Rosset:
Test 1: express agreement, arrangement, or understanding that both parties would
share the property beneficially; OR
Test 2: infer common intention from direct financial contributions to the purchase
price or mortgage.
Both tests also require detrimental reliance (Hudson v Hathway).
NB on the corrected statement of Rosset: Test 1 is express
agreement/arrangement/understanding; Test 2 is direct contributions to purchase price or
mortgage. Both limbs require detrimental reliance — this applies across the board, not just to
Test 2.
Joint names cases
, Presumption: all parties hold equal interests in equity (equity follows the law → joint
tenants in equity).
Burden: on the party arguing for a larger share to show a common intention to vary.
Apply Stack v Dowden: ask what other contributions or conduct might indicate a common
intention to vary the equal-share starting point. Use Lady Hale's "paragraph 69 factors" as
your checklist (see §6 below).
STAGE 2 — Quantification (same approach for both sole and joint names cases)
Apply Jones v Kernott — three routes to quantify the share, in this order:
1. Express agreement between the parties as to shares → give effect to it.
2. Infer intention from evidence/conduct of the parties.
3. Impute — only if there isn't enough evidence to express or infer. The court ascribes what it
considers fair, having regard to the whole course of dealing in relation to the property
(Oxley v Hiscock).
Come to a reasonable figure. The marker is not testing your actual conclusion — it's testing your
reasoning and how well you defend your position.
1. The Statutory Framework: LPA 1925
Section 52 — Conveyances must be by deed
s.52(1): Any conveyance of land or interest in land is void for creating/conveying a legal
estate unless made by deed.
s.52(2) lists exceptions, including: assents by personal representatives, disclaimers under
the Insolvency Act 1986, surrenders by operation of law, certain leases/tenancies not
required to be in writing, flexible tenancies, certain assured tenancies of social housing,
receipts, court vesting orders, and conveyances taking effect by operation of law.
s.52(3) defines key terms (assured tenancy, dwelling-house, flexible tenancy, long tenancy
[>21 years], shared ownership lease).
Section 53 — Instruments required to be in writing
s.53(1)(a): No interest in land can be created or disposed of except by writing signed by the
creator/conveyor (or authorised agent), or by will, or by operation of law.
s.53(1)(b): A declaration of trust of land must be manifested and proved by writing signed
by someone able to declare the trust, or by will. (NB: writing is evidential, not constitutive —
the trust can exist orally and just needs writing to be enforceable.)
, s.53(1)(c): A disposition of an existing equitable interest must be in writing signed by the
disponor (or agent), or by will.
s.53(2) — CRITICAL FOR TOPIC 7: This section does not apply to the creation or operation
of resulting, implied or constructive trusts.
Why s.53(2) matters: This is the gateway for the entire CICT analysis. Constructive trusts
can arise informally — without writing — which is essential for cohabiting couples who never
executed an express declaration of trust over their home.
Essential cases listed in your course pack
Lloyds Bank v Rosset [1991] 1 A.C. 107 — focus on CICT, not the s.70(1)(g) LRA 1925
overriding interest aspect
Stack v Dowden [2007] UKHL 17, [2007] 2 A.C. 432
Jones v Kernott [2011] UKSC 53
Curran v Collins [2015] EWCA Civ 404, [2016] 1 FLR 505
2. Why "Home" Matters — Setting the Scene
The family home is more than bricks and mortar. Bevan, drawing on Rapoport ("home = house +
x") and Fox, identifies four cluster value types that "home" engages:
1. Physical structure — shelter and protection
2. Physical territory — security, control, permanence, continuity
3. Centre for self-identity — values, ideas, indicator of personal status
4. Social and cultural unit — locus for personal relationships and place of "ownership"
The legal tension: Land law prizes certainty, clarity and order — yet must respond to deeply
subjective, emotionally loaded notions of home.
When does an interest in the home matter in practice?
One cohabitant leaves after relationship breakdown (do they have an interest? can they
force a sale?)
One cohabitant dies (what happens to their interest?)
The home is mortgaged and the borrower defaults (can occupiers resist the lender's
possession claim?)
A creditor seeks sale of the home to satisfy an unsecured debt (can occupiers resist?)
Why does this issue arise at all?
Married couples / civil partners facing divorce or dissolution → wide statutory discretion
A complete study guide synthesising the LPA 1925 extracts, the Bevan textbook
chapter, Mills' Conv. 2018 article, and the lecturer's seminar framework
⭐ LECTURER'S FRAMEWORK — Use this structure for problem questions
Threshold point
The CICT falls within the s.53(2) LPA 1925 exception — no formalities required. Strong
knowledge of case law (and its application) is therefore essential.
First, identify the type of case
Sole name case = 1 legal owner
Joint names case = 2 or more legal owners
The presumptions differ, so this classification drives everything that follows.
STAGE 1 — Acquisition (sole name) OR Intention to Vary (joint names)
Sole name cases
Presumption: equity follows the law (Stack v Dowden) — the person NOT on the legal title
is not automatically entitled to an equitable interest.
Burden: on the non-owner to prove they have acquired an interest.
Apply Lloyds Bank v Rosset:
Test 1: express agreement, arrangement, or understanding that both parties would
share the property beneficially; OR
Test 2: infer common intention from direct financial contributions to the purchase
price or mortgage.
Both tests also require detrimental reliance (Hudson v Hathway).
NB on the corrected statement of Rosset: Test 1 is express
agreement/arrangement/understanding; Test 2 is direct contributions to purchase price or
mortgage. Both limbs require detrimental reliance — this applies across the board, not just to
Test 2.
Joint names cases
, Presumption: all parties hold equal interests in equity (equity follows the law → joint
tenants in equity).
Burden: on the party arguing for a larger share to show a common intention to vary.
Apply Stack v Dowden: ask what other contributions or conduct might indicate a common
intention to vary the equal-share starting point. Use Lady Hale's "paragraph 69 factors" as
your checklist (see §6 below).
STAGE 2 — Quantification (same approach for both sole and joint names cases)
Apply Jones v Kernott — three routes to quantify the share, in this order:
1. Express agreement between the parties as to shares → give effect to it.
2. Infer intention from evidence/conduct of the parties.
3. Impute — only if there isn't enough evidence to express or infer. The court ascribes what it
considers fair, having regard to the whole course of dealing in relation to the property
(Oxley v Hiscock).
Come to a reasonable figure. The marker is not testing your actual conclusion — it's testing your
reasoning and how well you defend your position.
1. The Statutory Framework: LPA 1925
Section 52 — Conveyances must be by deed
s.52(1): Any conveyance of land or interest in land is void for creating/conveying a legal
estate unless made by deed.
s.52(2) lists exceptions, including: assents by personal representatives, disclaimers under
the Insolvency Act 1986, surrenders by operation of law, certain leases/tenancies not
required to be in writing, flexible tenancies, certain assured tenancies of social housing,
receipts, court vesting orders, and conveyances taking effect by operation of law.
s.52(3) defines key terms (assured tenancy, dwelling-house, flexible tenancy, long tenancy
[>21 years], shared ownership lease).
Section 53 — Instruments required to be in writing
s.53(1)(a): No interest in land can be created or disposed of except by writing signed by the
creator/conveyor (or authorised agent), or by will, or by operation of law.
s.53(1)(b): A declaration of trust of land must be manifested and proved by writing signed
by someone able to declare the trust, or by will. (NB: writing is evidential, not constitutive —
the trust can exist orally and just needs writing to be enforceable.)
, s.53(1)(c): A disposition of an existing equitable interest must be in writing signed by the
disponor (or agent), or by will.
s.53(2) — CRITICAL FOR TOPIC 7: This section does not apply to the creation or operation
of resulting, implied or constructive trusts.
Why s.53(2) matters: This is the gateway for the entire CICT analysis. Constructive trusts
can arise informally — without writing — which is essential for cohabiting couples who never
executed an express declaration of trust over their home.
Essential cases listed in your course pack
Lloyds Bank v Rosset [1991] 1 A.C. 107 — focus on CICT, not the s.70(1)(g) LRA 1925
overriding interest aspect
Stack v Dowden [2007] UKHL 17, [2007] 2 A.C. 432
Jones v Kernott [2011] UKSC 53
Curran v Collins [2015] EWCA Civ 404, [2016] 1 FLR 505
2. Why "Home" Matters — Setting the Scene
The family home is more than bricks and mortar. Bevan, drawing on Rapoport ("home = house +
x") and Fox, identifies four cluster value types that "home" engages:
1. Physical structure — shelter and protection
2. Physical territory — security, control, permanence, continuity
3. Centre for self-identity — values, ideas, indicator of personal status
4. Social and cultural unit — locus for personal relationships and place of "ownership"
The legal tension: Land law prizes certainty, clarity and order — yet must respond to deeply
subjective, emotionally loaded notions of home.
When does an interest in the home matter in practice?
One cohabitant leaves after relationship breakdown (do they have an interest? can they
force a sale?)
One cohabitant dies (what happens to their interest?)
The home is mortgaged and the borrower defaults (can occupiers resist the lender's
possession claim?)
A creditor seeks sale of the home to satisfy an unsecured debt (can occupiers resist?)
Why does this issue arise at all?
Married couples / civil partners facing divorce or dissolution → wide statutory discretion
