To assess the development of the law relating to implied trusts and the family home I shall examine the elements found in the question’s Hudson quote in relation to the key cases that have tried to move the law towards a greater sense of ‘fairness’ and to avoid unconscionability.
When a person holds both the legal and equitable interest in a piece of land they are the legal owner. When a trust is created the legal ownership is transferred from the owner (or settlor) to a trustee, with accompanying obligations to discharge the interests of the settlor at the same time the equitable interest is transferred to a beneficiary, giving them certain rights in the property.
“Where there has been an express trust declared over land, the terms of
…show more content…
Although let us note that in both Stack v Dowden and Jones v Kermott both the women were the main financial contributor to the purchase price, a reflection of modern times on one hand. However the fact that the money is the only element that is given real value in these cases suggests that in some ways little has changed ideologically as in both the courts fail to impute intention from the actions or agreements of the parties that they wanted to share their apportions in the property.
Gissing v Gissing expanded upon resulting trusts by going beyond the limitations of rights obtained via the same to include the broader common intentions of the parties giving rise to a common intention resulting trust.
In Alastair Hudson’s Equity & Trusts he quotes Lord Diplock suggesting that people were more likely to be concerned about the “economic realities” they were dealing with than with the “technicalities of English law” meaning they would not be overly formal in their interaction with their homes. Common intention could be found through discussion between the parties, from evidence or inferred from conduct.
“The ultimate aim is to reach a ‘fair’
Lord Wilberforce, the judges who presided over the Anns v. Merton case used a two-step test in determining the scope of proximity between the homeowner and the municipality. The first part of the test determined whether the relationship between the two parties was sufficient enough so that failure to exercise a duty of care by one of the parties would result in damages sustained by the other. The second step, pursuant upon the first step looks at any aspects that would limit the obligations placed on the party to exercise a duty of care. This test and the Anns v. Merton case set a strong precedent that was used in the Kamloops v. Nielson case, the first of its kind in Canada.
The importance of social context in Land Law and the reforms which have occurred as a result cannot be ignored or their significance understated. In particular is the impact of the shift in the twentieth century to ‘emergence of a property owning, particularly a real-property-mortgaged-to-a-building-society-owning-democracy’. Such growth could hardly have been anticipated when the LPA 1925 was drafted and subsequently became statute. As a consequence of this growth the doctrine of the resulting trust and to a greater extent, the constructive trust became a robust mechanism by which non legal owners could establish beneficial interests in the home. Swadling comments on the ‘complete change in attitude’ between the emphasis on security of ownership of the home in Boland and the free marketability of land which we see in Flegg. He states ‘one wonders what has happened to the demands of social justice which justified their Lordships decision in 1980 (in Boland) over such a brief passage of time’. Did the House of Lords fail to resolve the very practical issue with which they were presented that had evolved over the passage of social change since the drafting of the 1925 legislation?
Tooher, Joycey, ‘Jubilant Jamie and the Elephant Egg: Acquisition of Title by Finding’ (1998) 6 Australian Property Law Journal 117
The Incorporated Council of Law Reporting for England & Wales. - Counsel [24] See footnote 22 – but page 61 [25] GEOFFREY, Marshall, Constitutional Theory, Clarendon Law Series, Oxford 1971 Chapter1 – the Law and the constitution, part 3. Dicey’s doctrine and its critics. [26] REGINA v HER MAJESTY'S TREASURY, Ex parte SMEDLEY, [COURT OF APPEAL], [1985] Q B 657, 19 December 1984, (c)2001 The Incorporated Council of Law Reporting for England & Wales [27] MITCHELL, JDB, Constitutional Law, 2nd edition, Edinburgh, W Green & SON LTD, 1968, Convention, page 31 [28] See footnote 22 but page 64
Andrews N, ‘Does a third party beneficiary have a right in English law?’ (1988) 8 Legal Studies 14
" SECTION 1. The property, both real and personal, which any married woman now owns, as her sole and separate property; that which comes to her by descent, devise, bequest, gift or grant; that which she acquires by her trade, business, labor or services, carried on or performed on her sole or separate account; that which a woman married in this State owns at the time of her marriage, and the rents, issues and proceeds of all such property, shall, notwithstanding her marriage, be and remain her sole and separate property, and may be used, collected and invested by her in her own name, and shall not be subject to the interference or control of her husband, or liable for his debts, except such debts as may have been contracted for the support of herself or her children, by her as his agent. The Married Women 's Property Act 1882 (45 & 46 Vict. c.75) was an Act of the Parliament of the United Kingdom that significantly altered English law regarding the property rights of married women, which besides other matters allow...
Given that it lies within the domain of equity, the case law indicates a great flexibility in its application, both in the substantive requirements of proof demanded by the courts and in the manner in which the courts will satisfy the equity. It is the first of these aspects of the doctrine that I will examine in this essay. I will look at the shift in the evidentiary requirements and what a representation (or an assurance of rights), a reliance (a change of position on the basis of that assurance) and a detriment (or unconscionable disadvantage) - the three pre-requisites for a successful claim - have come to mean with regard to case law and in particular the judgement of Judge Robert Walker in the Court of Appeal in Gillett v. Holt[1], in which the plaintiff had been given repeated assurances over many decades that he would inherit the defendant's estate, and remained in service to him at least p... ... middle of paper ... ... operty, 16th Ed, Butterworths K. Gray & S.F Gray - Land Law, 2nd Ed, Butterworths Professor Cedric D Bell - Land: The Law of Real Property, 3rd Ed, Old
Becky and Roy are a (fictional) couple that have been together for seven years. They have a five-year-old daughter and a mortgage. However, like 2.9 million other couples in the UK , they are unmarried. This figure has risen from 2.2 million in 2003 , suggesting that cohabitation is a rapidly growing and widely accepted phenomenon. Becky and Roy cohabited in a stable relationship that could be compared to a marriage for a few more years until the relationship began to break down. It deteriorated rapidly and both parties agreed to separate. Although the split was amicable at first, once it was time to divide the property the intricacy of the law in this area caused further problems. Roy had been paying the majority of the mortgage, but Becky had made substantial renovations to the house, as well as managing all the domestic needs. Additionally, each individual believed that they would be entitled to certain rights as part of a ‘common law marriage’, but unbeknownst to them this protection does not exist in the English Legal System. This is a situation many cohabiting couples find themselves in today.
The term “ethics” refers to an external set of rules that have been established by an institution or organization, for example, a university, and the members are expected to follow them. On the other hand, integrity refers to an individuals’ internal set of principles that guides their actions and behavior (Czimbal and Brooks n.p.). As a rule, people are usually rewarded when they follow ethical codes of conduct by an external committee or board that monitors their behavior. For a person of high integrity, the benefits are usually intrinsic. Moreover, such individuals always make the right decisions even when they are not being watched. Therefore, this feature of character is often influenced by a person’s upbringing. In
Accessed 16/03/2012. http://www.law201.co.uk/95.pdfaccessed on 16/03/2012. http://www.oup.com/uk/orc/bin/9780199219742/01student/mindmaps/loveland_mindmaps_royal_prerogative.pdfaccessed on 17/03/2012. http://www.justice.gov.uk/royal-prerogative.pdf accessed on 17/03/2012. http://www.justice.gov.uk/royal-prerogative.pdf accessed on 18/03/2012.
Despite it’s longevity, consideration is not without criticism. Lord Goff observed in White v Jones that: ‘our law of contract is widely seen as deficient in the sense that it is perceived to be hampered by the presence of an unnecessary doctrine of consideration’. Abolition has been urged. Since the publication of the Law Revision Committee’s report in 1937, la...
A contract is an agreement between two parties in which one party agrees to perform some actions in return of some consideration. These promises are legally binding. The contract can be for exchange of goods, services, property and so on. A contract can be oral as well as written and also it can be part oral and part written but it is useful to have written contract otherwise issues can be created in future. But both the written as well as oral contract is legally enforceable. Also if there is a breach of contract, there are certain remedies for that which are discussed later in the assignment. There are certain elements which need to be present in a contract. These elements are discussed in the detail in the assignment. (Clarke,
Honesty is a characteristic that everyone should possess. However, being honest is a difficult task for many people. Living honestly means allowing a person’s true self to be exposed to others. Honesty is considered owning up to one’s wrongdoings and not lying, cheating, or stealing. Being honest is a trait that many people believe is obsolete. Even though every person interprets honesty differently, it all stems back to telling the truth. Being honest allows a person to earn respect from their peers. Honesty is allowing oneself to be completely exposed by being truthful.
Honesty and integrity are very important in the medical field. We as healthcare workers are given such trust and responsibility. We should always strive to do our best and when faced with tough situations. When we don't always know what to do or the proper way to react we should always be honest. Let our superiors know what is going on and ask for advice when we need to. This would show that we are honest. When we come into contact with patients they rely on us to do the right thing and always perform our job with integrity. Often people’s lives are in our hands. We have to care about the patient and care about our job in order to continue to provide quality care. If someone hates their job they are not going to give their best in every way they can. The medical field is not a place for that person.
The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...