Sharing Homes: a Discussion Paper
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Institute of Legal Executives Level 6
Subject 38 INSTITUTE OF LEGAL EXECUTIVES LEVEL 6 - EQUITY & TRUSTS EXAMINER’S REPORT – AUTUMN 2009 Introduction The primary aim of this report is to do the following: • comments on overall performance by candidates in the Autumn 2009 Equity and Trusts examination; • advises on how performance might be improved; • indicates what should be contained in successful answers to the questions in the examination paper; • provides comment on performance in individual questions. • this is the final Equity and Trusts examination paper under the Level 6 Professional Higher Diploma in Law. If candidates have failed then they should consider sitting Equity and Trusts on the new Level 6 Professional Higher Diploma in Law and Practice. Information is available on the ILEX website at [email protected] Comment on Overall Performance This is a Level 6 paper and was, consequently, appropriately demanding. Successful candidates are therefore to be congratulated. The most common weaknesses were: 1. Poor legal problem solving skills; 2. Lack of adequate skills for tackling essay questions; 3. Poor structure and inadequate understanding of how to use the law to answer questions; 4. Lack of knowledge of the law of Equity and Trusts. Poor Legal Problem Solving Skills Common weaknesses included: failure to identify all the key issues raised by the problem questions; failure to identify the particular principles of law relevant to the problems; failure to state the law accurately and cite cases appropriately; failure to apply the law to the facts of problem questions in an appropriate manner or (in the case of a few candidates) to apply it to the facts at all. -
The Overlapping of Legal Concepts a Legal Realist Approach to the Classification of Private Law
THE OVERLAPPING OF LEGAL CONCEPTS A LEGAL REALIST APPROACH TO THE CLASSIFICATION OF PRIVATE LAW by DAVID SALMONS A thesis submitted to the University of Birmingham for the degree of DOCTOR OF PHILOSOPHY Birmingham Law School College of Arts and Law University of Birmingham Summer 2011 University of Birmingham Research Archive e-theses repository This unpublished thesis/dissertation is copyright of the author and/or third parties. The intellectual property rights of the author or third parties in respect of this work are as defined by The Copyright Designs and Patents Act 1988 or as modified by any successor legislation. Any use made of information contained in this thesis/dissertation must be in accordance with that legislation and must be properly acknowledged. Further distribution or reproduction in any format is prohibited without the permission of the copyright holder. ABSTRACT The main aim of this research is two-fold; firstly, these chapters will seek to demonstrate the unreliability of theoretical or abstract approaches to legal reasoning in describing the law. Secondly, rather than merely providing a deconstruction of previous attempts to classify private law, the chapters attempt to construct an overlapping approach to classification. This represents a new way of classifying private law, which builds on the foundations of the lessons of legal realism and explains how classification can accommodate overlaps to assist in identifying the core elements of private law reasoning. Following the realist tradition, the thesis argues for narrower formulations of the concepts of property, contract and tort. It is then argued that within these narrower concepts, the law is made more predictable and clearer. -
Land Law Jan 13
LEVEL 6 - UNIT 9 – LAND LAW SUGGESTED ANSWERS – JANUARY 2013 Note to Candidates and Tutors: The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the January 2013 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ reports which provide feedback on student performance in the examination. SECTION A Question 1 The decision of the Supreme Court in Kernott v Jones (2011) is the latest in a long line of judicial decisions seeking to establish the nature of implied trusts of the family home. Where cohabiting couples have considered the division of property on sale or the breakdown of the relationship and have expressed the nature of the trust, there can be little problem. An express trust of land will be recognised so long as the relevant formality requirements are satisfied (s53 Law of Property Act 1925): it is made in writing and signed by the settlor or settlors. It is often the case that such trusts appear on the face of the transfer of the property to the trustees. Where such an express trust is not found a resulting or a constructive trust may be implied. -
Key Facts and Key Cases
KEY FACTS KEY CASES Equity & Trusts 25726.indb i 18/11/2013 10:40 KEY FACTS KEY CASES The Key Facts Key Cases revision series is designed to give you a clear understanding and concise overview of the fundamental principles of your law course. The books’ chapters refl ect the most commonly taught topics, breaking the law down into bite- size sections with descriptive headings. Diagrams, tables and bullet points are used throughout to make the law easy to understand and memorise, and comprehensive case checklists are provided that show the principles and application of case law for your subject. Titles in the series: Contract Law Criminal Law English Legal System Equity & Trusts EU Law Family Law Human Rights Land Law Tort Law For a full listing of the Routledge Revision range of titles, visit www.routledge.com/law 25726.indb ii 18/11/2013 10:40 KEY FACTS KEY CASES Equity & Trusts Chris Turner and Judith Bray Routledge Taylor & Francis Group LONDON AND NEW YORK 25726.indb iii 18/11/2013 10:40 First edition published 2014 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2014 Chris Turner and Judith Bray The right of Chris Turner and Judith Bray to be identifi ed as authors of this work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. -
Proprietary Estoppel
UNIVERSITY OF THE WEST INDIES FACULTY OF LAW REAL PROPERTY I Worksheet 5 2018-2019 Proprietary Estoppel LEARNING OBJECTIVES By the end of this lesson, you should be able to:- Explain and apply the principles governing the doctrine of proprietary estoppel Required General Readings: Sampson Owusu, Commonwealth Caribbean Land Law, Ch. 6 and Ch. 7 Kevin and Susan Gray, Elements of Land Law (5th ed.), Chap. 9.2, pp. 1196 -1256 Neuberger, “The Stuffing of Minerva’s Owl? Taxonomy and Taxidermy in Equity” [2009] CLJ 537. Timothy Fancourt, QC, “Are All Estoppels Alike” available from https://www.chba.org.uk/for-members/library/overseas-seminars/3-non-financial THE DOCTRINE OF PROPRIETARY ESTOPPEL • The term estoppel is used to refer to circumstances in which a person is prevented or estopped from denying the truth of a particular matter of fact or law - Roger Smith, Introduction to Land Law (p.30). • A proprietary estoppel may arise in the following cases: (i) Incomplete gifts (ii) Reasonable (common) expectation of acquisition of right (iii) Unilateral Mistake The equitable doctrine of proprietary estoppel intervenes to “restrain (or estop) the assertion of legal entitlement on the grounds of conscience.”1 According to Walker LJ in Gillett v Holt [2001] Ch. 210 at 255, “[t]he fundamental principle that equity is concerned to prevent unconscionable conduct permeates all elements of the doctrine.” The doctrine of proprietary estoppel operates to prevent the revocation of a right held by one person (B) based on an assurance given by another (A) which the first person (B) relied on and was led to believe was permanent.2 1 Ridall, p. -
Unit 5 – Equity and Trusts Suggested Answers - January 2013
LEVEL 6 - UNIT 5 – EQUITY AND TRUSTS SUGGESTED ANSWERS - JANUARY 2013 Note to Candidates and Tutors: The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the January 2013 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ reports which provide feedback on student performance in the examination. SECTION A Question 1 This essay will examine the general characteristics of equitable remedies before examining each remedy in turn to analyse whether they are in fact strict and of limited flexibility as the question suggests. The best way to examine the general characteristics of equitable remedies is to draw comparisons with the common law. Equitable remedies are, of course discretionary, whereas the common law remedy of damages is available as of right. This does not mean that the court has absolute discretion, there are clear principles which govern the grant of equitable remedies. Equitable remedies are granted where the common law remedies would be inadequate or where the common law remedies are not available because the right is exclusively equitable. One of the key characteristics of equitable remedies is of course that they act in personam. -
Report 73: Unilateral Severance of a Joint Tenancy
NSW Law Reform Commission: REPORT 73 (1994) - UNILATERAL SEVERANCE OF A JOINT TENANCY NSW Law Reform Commission REPORT 73 (1994) - UNILATERAL SEVERANCE OF A JOINT TENANCY Table of Contents Table of Contents....................................................................................................... 1 Terms of Reference and Participants......................................................................... 2 Executive Summary ................................................................................................... 4 Summary of Recommendations ................................................................................. 6 1. Introduction ............................................................................................................ 8 2. Background .......................................................................................................... 10 3. Existing Methods of Unilateral Severance............................................................ 14 4. Shortcomings of the Existing Modes of Effecting Unilateral Severance ............... 20 5. Why Should Unilateral Severance be Simplified? ................................................ 28 6. Reform in Other Jurisdictions ............................................................................... 32 7. Recommendation: Unilateral Severance by Registration of a Declaration of Severance ................................................................................................................ 35 8. Features of the System of Severance -
Level 6 - Unit 5 – Equity & Trusts Suggested Answers – January 2011
LEVEL 6 - UNIT 5 – EQUITY & TRUSTS SUGGESTED ANSWERS – JANUARY 2011 Note to Candidates and Tutors: The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the January 2011 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ reports which provide feedback on student performance in the examination. SECTION A 1(a) A decree of specific performance is a court order instructing a party to a contract to perform their obligations under that contract. Failure to comply is contempt of court. It is a precondition of a decree of specific performance that the remedy at law is inadequate. That remedy is generally damages. This is consistent with the role of equity within our legal system, as it developed to provide remedies for those who could not receive the assistance they required through the common law courts. Whether damages are an adequate remedy will depend on the subject matter of the contract. If a contract is for the sale and purchase of an item that is unique, no amount of damages will be able to make up for the fact that the purchaser will no longer receive the item they contracted for. -
Confronting the Forms of Action: the Emergence of Substantive Estoppel Introduction
Linda Kirk* CONFRONTING THE FORMS OF ACTION: THE EMERGENCE OF SUBSTANTIVE ESTOPPEL INTRODUCTION The fonns of action we have buried but they still rule us from their graves. 1 he deepest, most crucial problem facing the legal system today is embracing and understanding the significance and effects of the abolition of the forms of action.2 The challenge goes beyond simply an appreciation of the impact of the Judicature Acts on the T procedural features of the law, to an understanding of the role of the Acts in the evolution and development of its substantive doctrines. The passage of the Judicature Acts did little to enhance the development of the legal system. On the contrary, the interpretation of the Acts by the judges in the nineteenth century hindered its development by converting procedural restrictions into substantive doctrines of law. As a consequence, the substantive law became trapped within the interstices of procedure,3 procedure which had been made obsolete by the Acts. This article reveals how the High Court of Australia is taking up the challenge presented by Maitland's immortal words. It is engaged in a process of the further abolition of the fonns of action, beyond that effected by the Judicature Acts. The abolition of the forms of action was thought to have been effected by the Judicature Acts of 1873-1875. These Acts sought to fuse the administration of common law and equity, and to remove the fonns of * LLB (Hons) BEe. This is a modified version of a dissertation submitted in partial fulfillment of the requirement for an Honours Degree in the Faculty of Law, University of Adelaide, 1990 entitled "Burying the Ghosts of the Past: The Abolition of the Forms of Action. -
Rethinking the Common Intention Constructive Trusts in Stack V Dowden and Jones V Kernott – Should the Resulting Trusts Be Preferred?
Rethinking the Common Intention Constructive Trusts in Stack v Dowden and Jones v Kernott – should the Resulting Trusts be preferred? by Yee Ching Leung Abstract Yee Ching Leung takes the two landmark cases, Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2011] UKSC 53, as starting points to consider the new Common Intention Constructive Trust approach in dealing with the issue of how the beneficial interest of a property is to be shared between two separating cohabitants. The article analyses whether this new approach should be preferred over the traditional Resulting Trust approach. The author explains the two approaches and gives three arguments in support of the Resulting Trust approach. First, it provides a greater degree of certainty, which is crucial in property law. Secondly, the traditional approach is more coherent in principle when comparing to the Common Intention Constructive Trust approach. Thirdly, the author argues that the Resulting Trust approach would not leave the discretion of judges unconfined. Toward the end of the article, the author gives two brief replies to the critics of the Resulting Trust approach. However, the Common Intention Constructive Trust approach is now the law of England and whether the Resulting Trust approach will return remains to be seen. I. Introduction This article concerns the issue of how the beneficial interest of a property is to be shared between two separating cohabitants. Generally, the issue can be resolved by either an express trust or an express agreement. However, in a domestic context, it is common that cohabitants do not make explicit arrangements. Accordingly, the courts have to decide the issue when disputes arise during their separation. -
PDF Print Version
HOUSE OF LORDS SESSION 2007–08 [2008] UKHL 55 on appeal from: [2006]EWCA Civ 1139 OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Yeoman’s Row Management Limited (Appellants) and another v Cobbe (Respondent) Appellate Committee Lord Hoffmann Lord Scott of Foscote Lord Walker of Gestingthorpe Lord Brown of Eaton-under-Heywood Lord Mance Counsel Appellants: Respondent: Nicholas Dowding QC Thomas Ivory QC Timothy Morshead Myriam Stacey (Instructed by DLA Piper UK LLP) (Instructed by Bird & Bird) Hearing dates: 4 and 5 JUNE 2008 ON WEDNESDAY 30 JULY 2008 HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Yeoman’s Row Management Limited (Appellants) and another v Cobbe (Respondent) [2008] UKHL 55 LORD HOFFMANN My Lords, 1. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Scott of Foscote. For the reasons he gives, with which I agree, I too would allow this appeal. LORD SCOTT OF FOSCOTE My Lords, Introduction 2. The essence of the problem to be resolved in this case can be quite shortly stated. A is the owner of land with potential for residential development and enters into negotiations with B for the sale of the land to B. They reach an oral “agreement in principle” on the core terms of the sale but no written contract, or even a draft contract for discussion, is produced. There remain some terms still to be agreed. The structure of the agreement in principle that A and B have reached is that B, at his own expense, will make and prosecute an application for the desired residential development and that, if the desired planning permission is obtained, A will sell the land to B, or more probably to a company nominated by B, for an agreed up-front price, £x. -
Proprietary Estoppel
Copyright of the New Zealand Law Journal is the property of LexisNexis NZ Ltd and its content may not be copied, saved or emailed to multiple sites or posted to a listserv without the copyright holder's written permission. However, users may print, download or email articles for individual use. [2021] NZLJ 195 Proprietary estoppel Connor Seddon and Henry Brandts-Giesen, Dentons Kensington Swan, on an emerging cause of action in the law of relationship property, trusts, and estates in New Zealand roprietary estoppel is a species of equitable estoppel considers the reliance and expectation measures of remedy where, when property is being transferred, an indi- and the Court states that the purpose of the remedy ought to P vidual can make a claim on that property on the basis be to eliminate the unconscionability and satisfy the equity. that the owner of the property had assured them that they The Court rejects a prima facie presumption in favour of would be granted the property and they had relied on that either the reliance or expectation measures. The Court states assurance to their own detriment. that the three elements relevant to the measure of remedy will In order to bring a successful claim in proprietary estop- be (1) the quality of assurance, (2) the nature of the detri- pel, the claimant must be able to establish four elements: mental reliance, and (3) the unconscionability. The expecta- a) a representation or assurance has been made to the tion measure is to be used when the measure would be claimant; proportionate as between the expectation, the detriment and b) the claimant has relied on that representation or assur- the remedy.