One of the things I really don’t like about academics is the way they sit in their offices with their heads so full of doctrinal legal theory that they forget (if they ever knew) about the ways real people lead their lives. What got me through land law as a student was Gray and Symes’ textbook, Real Property and Real People. The great thing about the re-invention of the constructive trust in the 1960s was that it seemed to provide a sufficiently malleable tool to connect real property and real people. So what if it was improper or that, properly, the approach should be the strict presumed resulting trust … Read the full post
Tag Archive for 'Constructive trust'
Clarke v Meadus [2010] EWHC 3117 (Ch)
Normally Dave would be covering this kind of case, knowing more about equity and trust right now than I probably ever will. But Dave is off being very clever to a tight deadline for other people, so I get to indulge my hobbyist’s interest at your expense.
The question in this appeal was whether supervening events could override an express declaration of trust shares in a property, whether in proprietary estoppel or a form of constructive trust. Much of the outcome remains subject to trial, as will be seen, given that this was an appeal of an order striking out C’s claim.
The … Read the full post
Wright v Wright [2010] EWHC 1808 (Ch) is a near perfect example of a fundamental principle of property law, which we tutors seek to ingrain into our students (mostly, it must be said, with limited success, having looked at hundreds of exam scripts), that intention is what determines the type of interest created or transferred (trust, gift, loan, bailment etc).
The circumstances were also rather unfortunate. Anthony (Tony) Wright had built up a successful battery business, and sold it to another company for £2.3 million; he joined the new company but, in breach of covenant, allegedly set up a competing battery business. The new company claimed damages against him of … Read the full post
Kernott v Jones [2010] EWCA Civ 578
This was the Court of Appeal hearing, on a second appeal, of a case on equitable interests in a property. We reported the first appeal to the High Court and were uneasy about the outcome of that appeal, which seemed to turn more on an idea of fairness than on any of the scant facts in imputing intention as to the distribution of equitable shares. The Court of Appeal judgment, while perhaps harsher on one of the parties, goes some way towards re-establishing certainty for those who, foolishly but inevitably, purchase property jointly while remaining unmarried.
The facts are set out in the … Read the full post
An opportunity to indulge in schadenfreude at the expense of a mortgage lender is offered by HSBC v Dyche [2009] EWHC 2954 (Ch) where a claim for possession by a mortgagee was dismissed because the actual occupant of the property was beneficiary under a constructive trust. The decision gives an example of the doctrine of the common intention constructive trust, and touches on the preconditions for overreaching to occur.
I’ll take a slightly different approach to the court and discuss each issue as it arises in the chronology.
the Constructive Trust
In 1976 Mr and Mrs Collelldeval (the C’s) moved into the property, which they held on trust for themselves … Read the full post
Jones v Kernott [2009] EWHC 1713 (Ch) [not on Bailii yet] was an appeal from the County Court on a Trust of Land and Appointment of Trustees Act 1996 case. At issue is the question of fairness and whether and how far a change in common intention can be inferred or imputed.
Ms Jones and Mr Kernott had bought the property involved in joint names in 1984. Both lived there until 1993 when their relationship ended. They were not married. Mr K moved out and in 1996 bought another property in his sole name. Ms J remained in the first property.
Mr K ceased to pay mortgage and other outgoings … Read the full post
Qayyum v Hameed & Anor [2009] EWCA Civ 352 is a case with a complicated background – it originated in the collapse of BCCI, for heaven’s sake – but thankfully, the issues in this appeal were relatively straightforward, if novel.
In 1991 Mr & Mrs Qayyum jointly purchased a house. In July 1991, Mr Q declared in a deed that he held his interest on trust for Mrs Q absolutely and covenanted to execute a transfer if called upon to do so. The deed was not stamped, but apparently on the undertaking of Mrs Q’s solicitors to do so, this was not an issue.
In 2003, in litigation against Mr … Read the full post
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