TRUSTS OF THE FAMILY HOME - STRUCTURE
(1) Establishing an Interest
Express trust would clearly outline who held the legal ttle to the property, and who held
benefcial interests in the home, and in what shares s.53 (1) (b) LPA 1925
If not express, then it would have to be an implied trust s.53 (2) LPA 1925
o Resultng Trust OR Constructve Trust
(2) How is the Legal Title Held?
Equity follows the law
Joint ownership or sole owner?
If joint ownership, a 50/50 split is presumed from the start so both partes have a benefcial
interest – so no need to establish a trust.
If sole legal owner then the other party will have to establish whether a beneficial interest
exists in favour of them, either through a RT or CT.
(3) Resultng Trust (RT)
A Presumed Resultng Trust (PRT) will arise where the other party paid part of the deposit or
is liable for the mortgage repayments (Cowcher v Cowcher)
Curley v Parkes: Contributon to the purchase price prior or at the tme would allocate a
beneficial interest
Jones v Kernot: resultng trusts are not suitable in allocatng benefcial interests in family
home.
Quantfying the Share under RT:
o Laskar v Laskar: The share is in direct proporton to the contributon
o ‘Bank balance’ approach to allocatng shares in the home
10% contributon = 10% interest in the property.
(4) Constructve Trust (CT)
Lloyds Bank v Rosset: Lord Bridge stated there are two ways to establish a constructve trust.
First Method: Express Common Intenton CT
(1) Intenton must be express
o Springete v eFoe: Cannot be an intent in the mind & then never communicated
(2) Intenton must be common
o Springete v efoe: Must be a bilateral spoken agreement. Has to be spoken.
(3) Detrimental Reliance
o Once express common intenton is established, the claimant must prove he/she
relied on that agreement to his/her detriment.
o Eves v Eves & Grant v Edwards: acton that the other would not have done ‘but for’
believing he/she had an interest in the home.
o Reliance can be financial reliance or non-financial reliance (any actvity that is
detrimental)
(1) Establishing an Interest
Express trust would clearly outline who held the legal ttle to the property, and who held
benefcial interests in the home, and in what shares s.53 (1) (b) LPA 1925
If not express, then it would have to be an implied trust s.53 (2) LPA 1925
o Resultng Trust OR Constructve Trust
(2) How is the Legal Title Held?
Equity follows the law
Joint ownership or sole owner?
If joint ownership, a 50/50 split is presumed from the start so both partes have a benefcial
interest – so no need to establish a trust.
If sole legal owner then the other party will have to establish whether a beneficial interest
exists in favour of them, either through a RT or CT.
(3) Resultng Trust (RT)
A Presumed Resultng Trust (PRT) will arise where the other party paid part of the deposit or
is liable for the mortgage repayments (Cowcher v Cowcher)
Curley v Parkes: Contributon to the purchase price prior or at the tme would allocate a
beneficial interest
Jones v Kernot: resultng trusts are not suitable in allocatng benefcial interests in family
home.
Quantfying the Share under RT:
o Laskar v Laskar: The share is in direct proporton to the contributon
o ‘Bank balance’ approach to allocatng shares in the home
10% contributon = 10% interest in the property.
(4) Constructve Trust (CT)
Lloyds Bank v Rosset: Lord Bridge stated there are two ways to establish a constructve trust.
First Method: Express Common Intenton CT
(1) Intenton must be express
o Springete v eFoe: Cannot be an intent in the mind & then never communicated
(2) Intenton must be common
o Springete v efoe: Must be a bilateral spoken agreement. Has to be spoken.
(3) Detrimental Reliance
o Once express common intenton is established, the claimant must prove he/she
relied on that agreement to his/her detriment.
o Eves v Eves & Grant v Edwards: acton that the other would not have done ‘but for’
believing he/she had an interest in the home.
o Reliance can be financial reliance or non-financial reliance (any actvity that is
detrimental)
