The Law About the Shared Home The common law favours the imposition of strict formality requirements on land transactions. If LP (MP) act 1989 s2[1] is not complied with there is no contract. Without a deed Legal estates and interests cannot be created or transferred under the LPA 1925 S52(1)[2]. Trusts of land can only be created by signed declarations in writing LPA 1925 s53(1)(b). The strictness of these requirements can sometimes ends in injustice, notably where relationships break down and the ownership of the property they share comes under scrutiny. This is outlined in the Discussion paper of shared homes. The decisions in some cases in this area of law has led to confusion. The paper comes to the conclusion that it is impossible to have a statutory framework in this area, and we must see if the decision in Hiscock has clarified this. In the Journal of social welfare and family law, an article titled ‘a law commission discussion paper with a difference’ is the criticism of the law commission discussion paper examining the legal rights of cohabitants in property. It states it ‘regrets its lack of consultation and its failure to make suggestions for reform and its adoption of a property law rather than a family law approach to the problem’. Previous cases, before Oxley have been contradictory in there nature and have never set a conclusive framework. Under the LPA 1925 S53 (1) (b) an express trust is unenforceable unless evidenced in writing but s53 (2) provides that this requirement does not affect the operation of resulting, implied or constructive trusts. In the previous cases it was the imposition of these trusts th... ... middle of paper ... ...Goddard [1983] 1 WLR [24] Target Holdings Ltd v Redfern 1995 3 WLR 352 [25] Nestle v Nat west Bank 1994 1 ALL ER 118 [26] Bray v Ford (1986) AC 44 [27] Keech v Sandford 1926 Sel Cas Temp King 61 [28] Wright v Morgan 1926 AC 788 [29] Kane v Radley – Kane 1998 3 ALL ER 753 [30] Walsh v Deloitte and Touche 2001 ALL ER 326 [31] Boardman v Phipps [1967] 2 AC 46 [32] AG for Hong Kong v Reid 1994 1 AC 324 [33] Re Diplock [1948] Ch 456 [34] Re Flower (1884) 27 ChD592 [35] Bahin v Hughes 1886 31 Chd 390 [36] Armitage v Nurse [1998] Ch 241 [37] Re Paulings 1964 ch 303 [38] Royal Brunei Airlines v Tan 1995 3 ALL ER 97 [39] Gruppo Torras v Al Sabah CA 2000 ALL ER 1643 [40] Lipkin Gorman v Karpnale and FC Jones and sons [1991] 2 AC 548 [41] Agip Ltd v Jackson [1991] Ch 547
R v International Stock Exchange of the UK and the Republic of Ireland Ltd, ex p Else (1982) Ltd and others [1993] 2 CMLR 677
In doing so, the court departed from the previous rulings in Lister and Sinclar which only found a personal claim. FHR has attracted academic debates, not least because the effect on unsecured creditors. In this respect, Goode 2011 finds it hardly justifiable to allow a principal to rank ahead of the unsecured creditors who have given consideration. Furthermore, Rotherham deems that the finding of constructive trust does not reflect the true intention of briber, because the bribe arguably was never intended for the principal. These points have been noted by Lord Neuberger in FHR, who opined that these should be outweighed by the principal’s proprietary claim. Firstly, the bribe money should not be in the fiduciary’s estate in the first place. Secondly, the payment as such had very often reduced the benefit of the principal relevant transaction and thus can be seen as belonging to the
Though there is no need for either party to use the word trust, the courts must be able to construe some sort of positive intent that the equitable interest was not to reside in the transferee. However Lord Millett later in Twinsectra Ltd denounces the emphasis previously placed on the party’s intent. Twinsectra involved a borrower seeking short term finance for the purchase of land and Lord Millett in this case states that Quistclose trusts are resulting trusts which arise by operation of law. His conclusion is based on the theory that resulting trust emerges when there is a transfer of property in circumstances in which the transferor did not intend to benefit the recipient. Carnworth J, however contends that from Twinsectra it seems that the parties place no real significance to the purpose so even applying Lord Millett’s newly configured resulting trust analysis, there is no real intent on the lenders part to ensure that the recipient does not receive the money at his free disposal. Furthermore, a key aspect of any intent to create a trust always revolves around the funds being held separately and so by devaluing this factor Lord Millett is detracting from traditional trust law principles and in the process is making it much easier to find a Quistclose trust in situations where it was never
Mason, The Hon Sir A, 1988, ‘The use and abuse of precedent’, Australian Bar Review, vol. 4, no.1, pp. 93.
The first issues presented in this case study is that of the mountain property that Martin owned with some of his friends as joint tenants with a right of survivorship. A joint tenancy with right of survivorship (JTWROS) can be a common way of owning property between related and unrelated individuals ensuring that upon one’s death, their share of the property is equally divided up among the remaining joint tenants (Segal, 1998). The first conundrum involving this property and the laws pertaining to JTWROS is the issue of Martin’s friend and cotenant Peter, who stated in
R v Secretary of State for Transport, ex parte Factortame Ltd and others [1999] All ER (D) 1173.
The second stage looks for the physical closeness within the two parties, this extends from the neighbour principle further assessing the right to a claim. The building coll...
This case is discussed here for informational purposes only and should not be construed as a
This research inquiry will outline and explain the current law related to Intestacy in QLD. It will investigate conflicting interests on the issue, when dealing with distribution in intestate situations in QLD, through analysis and discussion of the impact of the present law on stakeholders. It will evaluate the application of the law in resolving the social issue associated with the distribution of estate by drawing conclusions based on research evidence.
It has been generally acknowledged that the doctrine of proprietary estoppel has much in common with common intention constructive trusts, i.e. those that concern the acquisition of an equitable interest in another person’s land. In effect, the general aim is the recognition of real property rights informally created. The similarity between the two doctrines become clear in a variety of cases where the court rely on either of the two doctrines. To show the distinction between the doctrines, this essay will analyse the principles, roots and rationale of both doctrines. With reference to the relevant case law it will be possible to highlight the subtle differences between the doctrines in the cases where there seems to be some overlap. Three key cases where this issue surfaced were the following: Lloyds Bank Plc v. Rosset (1991), Yaxley v. Gotts (1999) and Stack v. Dowden (2007). This essay will describe the relevant judgements in these cases in order to show the differences between the two doctrines.
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.
Current English land law on the co-ownership of interests of land has developed quite a contentious history pertaining to the relationship between the acquisition of rights and the quantification of the shares. In terms of co-ownership, there are huge variances and legal consequences when legal ownership is in one person’s name compared to two. These differences can be seen in various landmark cases which have created precedent and developed refined principles such as Lloyds Bank plc v Rosset and the Stack v Dowden. For the courts, it has often been relatively complex to distinguish between constructive and resulting trusts and to decide on the procedure to be used for the quantification of equitable entitlement once the decision to impute has been established. The quantification of resulting trusts is carefully considered in both, Midland Bank v Cooke and Stack v Snowden. In many co-ownership cases dealing with the acquisition of rights and the quantification of shares, the outcomes aren’t always proportionate. Reasons can include the ambiguities in the identification and changes of common intention and contributions types. In speaking to this issue, Baroness Hale stated in Stack v Dowden that “each case will turn on its own facts” and furthermore elaborated on the conditions for a common intention construct arising. It is furthermore important to critically discuss the repercussions these cases have for the future of co-ownership law to reconcile existing sources of confusion.
According to Clarkberg, Stolzenberg and Waite, from the University of Chicago, cohabitation is preferred over marriage by a specific group of people defined through their preferences in certain attitudes and values. According to this study, people chose to enter into either marriage or cohabitation depending on their views on procreation and relationships. However, the article also includes a study of peoples choice relying on views towards leisure time allotment, household labor division, employment, economic resources and relationships with immediate and extended family as well as with religion.
Changing Family values, the role of family in contemporary society and constructive ideas for family life as we enter the 21st century.
...d acts tot heir detriment on the basis of trust. But there are some contradicting grounds between the two. Constructive trust is generally created by the action of the parties whereas a court order is mandatory in proprietary estoppel. Furthermore, the nature of constructive trust is to identify the true beneficial owner of the land and it reflects the nature of a person's interest but the court makes the minimum award which are essential to proceed for justice under proprietary estoppel, which allows the courts to provide such remedy fits to the facts of the case and the remedy is not necessarily be similar to the share in the beneficial ownership of the land to a monetary award.