DOCSLIB.ORG

Durham Law Review

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Durham Law Review Durham Law Review Volume VI Part 1 February 2021 [2021] D.L.R 1 Durham Law Review [2021] BUILDING A NEW FOUNDATION FOR TRUSTS OF THE FAMILY HOME: THE CASE FOR UNJUST ENRICHMENT. Zachary Salmon 2 Durham Law Review [2021] Table of Contents INTRODUCTION ................................................................................................................... 4 CHAPTER 1 .............................................................................................................................. 7 Evaluating the Current Approaches and Critiquing the Proposed Solutions .......................................7 Introduction ....................................................................................................................................................7 The Resulting Trust ........................................................................................................................................7 The Common Intention Constructive Trust ...................................................................................................9 Contemporary Solutions in Trust of the Family Home Disputes.................................................................. 14 Conclusion .................................................................................................................................................... 18 CHAPTER 2 ............................................................................................................................ 19 Contrasting the Approaches to Unjust Enrichment in England and Canada ..................................... 19 Introduction .................................................................................................................................................. 19 Unjust Enrichment in England and Wales – Enrichment ............................................................................. 19 Unjust Enrichment in Canada – Enrichment ................................................................................................ 22 The Canadian ‘Joint Family Venture’ approach ............................................................................................ 23 Unjust factor v Absence of basis / Absence of juristic reason ........................................................................ 25 Conclusion .................................................................................................................................................... 28 CHAPTER 3 ............................................................................................................................ 29 Unveiling the Proposed Approach ..................................................................................................... 29 Introduction .................................................................................................................................................. 29 Coverage of the New Approach .................................................................................................................... 29 Joint Title Disputes ....................................................................................................................................... 30 Sole Title Disputes ........................................................................................................................................ 33 a) Enrichment .......................................................................................................................................... 33 b) At the Claimant’s Expense ................................................................................................................... 35 c) Absence of Juristic Reason .................................................................................................................. 36 d) Quantifying the Interest ....................................................................................................................... 37 e) The Remedial Constructive Trust ....................................................................................................... 38 Conclusion .................................................................................................................................................... 40 CONCLUSIONS ..................................................................................................................... 41 BIBLIOGRAPHY ................................................................................................................... 43 3 Durham Law Review [2021] Acknowledgements I would like to thank my supervisor, Chris Bevan, and my tutor, Andy Hayward, for their continuous support and invaluable insights. 4 Durham Law Review [2021] INTRODUCTION he family home is unique. It is often the owner’s most valuable asset, and it is the subject of strenuous debate upon relationship breakdown.1 Despite its importance, T the law has not yet provided a convincing and coherent basis for ascertaining who has an interest in the family home, and how such an interest should be quantified. This has left the area of trusts of the family home, ‘complicated and difficult to apply’.2 The conflicting doctrines in this area, (the Resulting Trust (RT) and the Common Intention Constructive Trust (CICT)) prioritise different criteria (monetary contributions, and common intention, respectively), and have been argued to apply to different contexts (domestic or commercial). This has left the law ‘unduly complex, arbitrary and uncertain’ for cohabitants, who wish to acquire or have their beneficial interest in the property quantified.3 As Sir Terence Etherton lamented, what is ‘sorely needed’ is a ‘coherent legal framework across the boundaries of trusts, estoppel and restitution’.4 This dissertation will propound such a coherent framework, as it will be based upon consistent and easily applicable policies, and will reject a case-by-case analysis based upon specific facts and doing justice, which ‘has not worked well so far’.5 In Chapter 1, this dissertation will critique how a beneficial interest in the family home can be acquired and quantified under the current law. This will demonstrate why a new approach is needed, and which issues require resolution. Then, some of the contemporary solutions to these issues will be analysed to demonstrate their lack of suitability. Two contemporary solutions shall be investigated for this purpose: enhanced familialisation, and Gardner’s ‘materially communal’ approach. 1 Law Commission, Sharing Homes (Law Com No 278, 2002), 1.8 2 Ibid, vii 3 Ibid, 1.1 4 Terence Etherton, ‘Constructive Trusts and Proprietary Estoppel: The Search for Clarity and Principle’ [2009] 73 Conv. 104 5 Ibid 5 Durham Law Review [2021] Once the flaws have been exposed in the current law, and in the proposed solutions, the discussion will turn to the English and Canadian approaches to Unjust Enrichment (UE). Chapter 2 will provide a basis from which this dissertation’s proposed approach will develop, and it will identify and evaluate the benefits of, and the main differences between, the Canadian and English approaches. Building on the critique and discussion of the previous chapters, Chapter 3 will propose a new approach for acquiring and quantifying a beneficial interest in the family home. Chapter 3 will demonstrate why this proposed approach is not only applicable in trusts of the family home cases, but also why it is better than the current law, or the proposed solutions, conceived thus far. Before an examination of the current law is undertaken, this dissertation’s proposed approach will briefly be outlined. First, a distinction will be made between joint title and sole title disputes. In a joint title dispute, as both parties have an equal legal interest in the property it is argued that both parties should have an equal beneficial interest,6 as putting a property into joint names is argued to be ‘a strong indication of emotional and economic commitment to a joint enterprise’.7 However, if the parties expressly declare their respective beneficial interests, then those shares should be conclusive. In contrast, a flexible approach will be taken in sole title disputes. An interest in such cases will be acquired and quantified not through intention, but through a modified and mixed version of English and Canadian UE. This approach will view all contributions towards the property as incontrovertibly enriching, and therefore incapable of being subjectively devalued. If any enrichment from these contributions is found to be at the claimant’s expense, then the claimant will be able to recover the total enrichment, rather than merely their loss suffered. 6 Terence Etherton, ‘Constructive Trusts: A New Model for Equity and Unjust Enrichment' [2009] CLJ 265, 282 7 Jones v Kernott [2011] UKSC 53, [2012] 1 AC 776, [19] 6 Durham Law Review [2021] Finally, for the enrichment to be unjust, it is proposed that an ‘absence of juristic reason’ approach should be accepted into English law. This would raise a presumption that any contribution is unjust, unless it is explicable on the grounds of gift, contract, etc. If these three stages are satisfied, then the interest of the non-titled party will be quantified through a ‘value- surviving’ analysis of the effect of their contributions on the parties’ respective financial positions. Once quantified, such an interest will be converted into a proportionate share of the property, held on a remedial constructive trust. Due to the constraints of
Load more

Recommended publications
  • 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.
    [Show full text]
  • 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.
    [Show full text]
  • Sharing Homes: a Discussion Paper
    The Law Commission (LAW COM No 278) SHARING HOMES A Discussion Paper Presented to the Parliament of the United Kingdom by the Lord High Chancellor by Command of Her Majesty November 2002 Cm xxxx The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Toulson, Chairman 1 Professor Hugh Beale QC Mr Stuart Bridge Professor Martin Partington CBE Judge Alan Wilkie, QC The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ. This Discussion Paper was first published online on 18 July 2002. The text of this Discussion Paper is available on the Internet at: http://www.lawcom.gov.uk 1 At the date this report was signed, the Chairman of the Law Commission was the Right Honourable Lord Justice Carnwath CVO. ii THE LAW COMMISSION SHARING HOMES A Discussion Paper CONTENTS Paragraph Page Executive Summary vi PART I: INTRODUCTION 1 The shared home 1.6 2 A property-based approach 1.23 6 PART II: THE CURRENT LAW 9 Introduction 2.1 9 Trusts of land 2.4 10 Legal and beneficial ownership of the shared home 2.10 11 Legal title – joint tenancy 2.12 11 Beneficial ownership- joint tenancy or tenancy in common 2.16 12 Resolution of disputes between trustees and beneficiaries 2.23 14 Dealings with third parties 2.27 15 Occupation of the shared home 2.32 17 Where a person has an interest under a trust of land 2.34 17 Matrimonial home rights 2.37 18 Orders regulating
    [Show full text]
  • Text, Cases and Materials on Equity and Trusts
    TEXT, CASES AND MATERIALS ON EQUITY AND TRUSTS Fourth Edition Text, Cases and Materials on Equity and Trusts has been considerably revised to broaden the focus of the text in line with most LLB core courses to encompass equity, remedies and injunctions and to take account of recent major statutory and case law developments. The new edition features increased pedagogical support to outline key points and principles and improve navigation; ‘notes’ to encourage students to reflect on areas of complexity or controversy; and self-test questions to consolidate learning at the end of each chapter. New to this edition: • Detailed examination of The Civil Partnership Act 2004 and the Charities Act 2006. • Important case law developments such as Stack v Dowden (constructive trusts and family assets), Oxley v Hiscock (quantification of family assets), Barlow Clowes v Eurotrust (review of the test for dishonesty), Abou-Ramah v Abacha (dishonest assistance and change of position defence), AG for Zambia v Meer Care & Desai (review of the test for dishonesty), Re Horley Town Football Club (gifts to unincorporated association), Re Loftus (defences of limitation, estoppel and laches), Templeton Insurance v Penningtons Solicitors (Quistclose trust and damages), Sempra Metals Ltd v HM Comm of Inland Revenue (compound interest on restitution claims) and many more. • New chapters on the equitable remedies of specific performance, injunctions, rectification, rescission and account. • Now incorporates extracts from the Law Commission’s Reports and consultation papers on ‘Sharing Homes’ and ‘Trustee Exemption Clauses’ as well as key academic literature and debates. The structure and style of previous editions have been retained, with an emphasis on introduc- tory text and case extracts of sufficient length to allow students to develop analytical and critical skills in reading legal judgments.
    [Show full text]
  • Creation of Express Trusts Capacity
    Creation of Express Trusts Capacity - ‘Legal competency or qualification’ - Two common exclusions = poor mental health, infancy - S1(6) LPA 1925: a minor cannot hold a legal estate in land (so cannot create a trust of land). THE THREE CERTAINTIES - Knight v Knight: Lord Langdale: for an express trust to be created the settlor must express 3 things with certainty. o Certainty of intention o Certainty of subject matter o Certainty of objects Certainty of Intention - Did settlor intend to subject the property to a trust obligation? - Two ways in which a trust can be created: o The settlor declares himself trustee of property that he already owns; o Settlor transfers property to another person directing that they hold it on trust for the beneficiary. - Has the settlor done enough to make clear his intention? - Re Kayford Ltd – Megarry LJ: ‘a trust can be created without using the words “trust” or “confidence” or the like; the question is whether in substance a sufficient intention to create a trust has been manifested’. - Company opened separate account, ‘Customer’s Trust deposit Account’ to pay in money received for goods not yet delivered, withdrawing the money only if goods were later delivered – so they could refund customers if goods not supplied (if company went into liquidation). - Held: trust had been created. - Paul v Constance: C separate from his wife + lived with P. A number of times C told P that the money was as much hers as his. o C died intestate + as he had not divorced his wife, wife was entitled to all of his estate.
    [Show full text]
  • The Future of Irish Restitution Law
    THE FUTURE OF IRISH RESTITUTION LAW NIAMH CONNOLLY* Irish restitution law exists within the gravitational field of English law. On the surface, it is very similar to English law, based on the orthodox unjust factors model. It has evolved in two distinct phases over the past 40 years. The first phase saw judicial innovation that laid the foundations for an indigenous law of unjust enrichment. In contrast, the second phase was characterised by the conscious alignment of Irish law with English law. Yet there remain doctrinal differences between the two systems. The main difference lies in the availability of the constructive trust as a remedy in Irish law, both where the requirements for an unjust enrichment claim are fulfilled, and independently of orthodox unjust enrichment rules. Looking ahead, Irish law’s trajectory will substantially depend on the path it is already on. With a view to identifying this, the first three parts of this article identify the doctrinal principles and rules that have evolved in Irish restitution law, examine how the law is applied in practice in trial courts and appellate courts, and evaluate judicial openness to innovation and to influences from other common law jurisdictions. Drawing on these findings, the final part offers some predictions about the future development of Irish restitution law. A. THE LAW IN IRELAND As a small jurisdiction, Ireland has relatively few restitution cases with which to fill in the detail of the law. This makes it a very convenient heuristic to assume that Irish restitution law is the same as English restitution law. However, it would be too simplistic to say that Irish restitution is identical to English law and will simply adopt developments in our neighbouring jurisdiction.
    [Show full text]
  • Deconstructing the Constructive Trust 133
    Deconstructing the Constructive Trust 133 Deconstructing the Constructive Trust Leonard I. Rotman' With the Supreme Court of Canada's judgment in Depuis I'arret Soulos c. Korkontzilas rendu par la Soulos v. Korkontzilas, the constructive trust has Cour supreme du Canada, la ftducie par again become the subject of contention in Canadian interpretation est redevenue un sujet controversi en law. Over the years, jurists and scholars have droit canadicn. Alt fit du temps, les juristes out generated significant debate over the nature and engage d'importants debats stir la nature el la function of the constructive trust and where it ought fonction de lafiducie d'interpretation etl'usagequ 'il to be used. While constructive trusts have been convient d'cn faire. Bicn que les fiducies par implemented in a variety ofsituations, there has not interpretation soient invoquees dans diverses always been agreement over whether all such uses circonstances, leur hien-fonde ne fait pas are appropriate. This debate continued in the I'unanimite. La Cour supreme du Canada a Supreme Court of Canada's decision in Soulos. poursuivi ce tie bat dans I'arrel Soulos. Quoique la While the majority decision in Soulos has clarified decision majoritaire ait elucide ce recours possible, the availability of the constructive trust in Canadian le caractere ouvert de la decision majoritaire et la law, the open-endedness of the majority judgment vehemence du juge dissident suggerenl que la and the vociferous dissent suggest that the issue question est loin d'etre reglee tine Join pour Unites. may not yet be put to rest. In this article, the author Dans le present article, Vmiteur examine I'arret critically examines the Soulos judgment and its Soulos et les consequences possibles de la fiducie potential effects on the law of constructive trusts in par interpretation an Canada.
    [Show full text]
  • The Development of the Remedial Constructive Trust
    THE DEVELOPMENT OF THE REMEDIAL CONSTRUCTIVE TRUST JOHN L. DEWAR* Edmonton Introduction In Pettkus v. Becker' a majority of the Supreme Court of Canada' for the first time invoked the concept of a remedial constructive trust based on unjust enrichment in upholding the claim of the plaintiff against her defacto spouse of nineteen years to a one half interest in certain assets standing in the latter's name.3 Prior to this decision the availability ofthe constructive trust as a general equitable remedy in Canadian law had been uncertain. Until the mid-1970s, the major influence upon the development of the constructive trust in Canada had come from English law, which, for historical reasons, had treated the constructive trust as a "substantive institution" 4 analogous to the express trust. However, because of the diversity of situations in which the constructive trust had been em- ployed, and because of the absence of an underlying themetying these situations together, the institutional analogy'had proved inadequate, and had required modification . The predominant view of the con- structive trust in England today, therefore, is that it is primarily institutional, but that in certain situations it serves a remedial func- tion. There are, however, a number ofrecent decisions of the English Court of Appeal which have invoked "a constructive trust of a new * John L. Dewar, of the Institute of Law Research and Reform, Edmonton, Alberta. This article was prepared foran Instituteproject on Living Together Outside Marriage . I wish to thank the Director of the Institute of Law Research and Reform, Mr. W.H . Hurlburt Q.C ., my former colleague, Mr .
    [Show full text]
  • Private Law in Theory and Practice
    Private Law in Theory and Practice Private Law in Theory and Practice explores important theoretical issues in tort law, the law of contract and the law of unjust enrichment, and relates the theory to judicial decision making in these areas of private law. Topics covered include the politics and philosophy of tort law reform, the role of good faith in contract law, comparative perspectives on setting aside con- tracts for mistake, and the theory and practice of proprietary remedies in the law of unjust enrichment. Contributors to the book bring a variety of theoretical perspectives to bear on the analysis of private law. They include: economic analysis, corrective justice theory, comparative analysis of law, socio-legal inquiry, social history, political theory as well as doctrinal analysis of the law. In all cases the theor- etical approaches are applied to recent case law developments in England, Australia and Canada, and, in the case of tort law, proposals in all these jurisdictions to reform the law. The book aims to present the theory of private law, and the application of theory to practical legal problems in an accessible form to teachers and students of tort, contract and the law of unjust enrichment, legal researchers and law reformers. Michael Bryan is Professor of Law at the University of Melbourne. He has researched and published extensively in the areas of equity, trusts and restitu- tion, including The Law of Non-Disclosure (with A. Duggan and F. Hanks: Longman, 1995) and contributed a chapter to The Law of Obligations: Connections and Boundaries (UCL Press, 2003).
    [Show full text]
  • TOLATA Trusts of Land – Where Are We Now? By
    TOLATA Trusts of Land – Where are we now? by Michelle Stevens-Hoare Hardwicke Michelle Stevens-Hoare aka Brie has developed a successful specialist property practice focusing particular on real property, the more commercial aspects of property work including disputes around property developments and commercial property. In addition Brie has considerable experience of contentious probate involving property. Her appearance in the Legal 500 as a leading property practitioner each year since 2002 and has also been ranked within Chambers UK every year since 2003 is one indicator of her reputation and profile. In 2005 Michelle was appointed as a Deputy Adjudicator to HM Land Registry. In 2010 she was reappointed. That appointment draws on her extensive experience of property litigation and has allowed her to enhance her knowledge and skills further. She is described in the directories as "...bright, academic and super organised" as well as “...committed..” and “...wonderful to use and doesn’t stand on ceremony...” as well as “...a very client focused, experienced, specialist property barrister”. Mediation is the other string to Brie’s bow. She has the benefit of a great deal of experience of mediation from both angles: representing clients in mediations and as a mediator. She is increasingly in demand in both capacities. Brie contributes to both The Law and Practice of Compromise by Foskett and Cousins The Law of Mortgages . HARDWICKE Hardwicke Building Lincoln’s Inn London WC2A 3SB Tel: 020 7691 0036 Fax: 020 7691 1234 Email: [email protected]
    [Show full text]
  • Moffat's Trusts Law Text and Materials Seventh Edition
    Cambridge University Press 978-1-108-79644-6 — Moffat's Trusts Law 7th Edition Frontmatter More Information Moffat’s Trusts Law Text and Materials Seventh Edition Always the serious student’s choice for a Trusts Law textbook, the new seventh edition of Moffat’s Trusts Law once again provides a clear examination of the rules of Trusts, retaining its hallmark combination of a contextualised approach and a commercial focus. The impact of statutory developments and a wealth of new cases – including the Supreme Court and Privy Council decisions in Patel v. Mirza [2016] UKSC 42, PJS v. News Group Newspapers Ltd [2016] UKSC, Burnden Holdings v. Fielding [2018] UKSC 14, and Federal Republic of Brazil v. Durant [2015] UKPC 35 – is explored. A streamlining of the chapters on charitable Trusts, better to align the book with the typical Trusts Law course, helps students understand the new directions being taken in the areas of Trust Law and equitable remedies. Jonathan Garton is a professor of Law at the University of Warwick. His main research interests are in the law of Trusts, with a particular focus on charities. Rebecca Probert is a professor of Law at the University of Exeter. She has published widely on both modern family law and its history. Gerry Bean is a partner at DLA Piper, one of the largest global law firms, where he practices in corporate law and M&A. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-108-79644-6 — Moffat's Trusts Law 7th Edition Frontmatter More Information The Law in Context Series Editors: William Twining (University College London), Maksymilian Del Mar (Queen Mary, University of London) and Bronwen Morgan (University of New South Wales).
    [Show full text]
  • Yours, Mine, Or Ours? Charting a Course Through Equity's
    Yours, Mine, or Ours? Charting a Course Through Equity’s Determination of Domestic Proprietary Interests Kathrine Galloway ORCID: 0000-0002-8047-1210 Submitted in total fulfilment of the requirements for an award of Doctor of Philosophy Submitted 24 March 2017 Melbourne Law School ABSTRACT Distributing proprietary interests between domestic heterosexual partners remains the purview of the courts of equity, using the trust. In answering the question: ‘Whose property is this?’ the courts are faced with the tension between a property law system designed for the market, and property claims arising from within a couple’s intimate lives. The law’s market orientation favours the party best able to explain their claim in market terms. Because of the gendered structures of society and the family, the process tends to favour the man. This prompts the question central to this thesis: Does equity have the capacity to determine domestic proprietary interests consistent with equality between men and women intimate partners in light of pervasive gender inequality? Existing analysis of intimate partner trusts predominantly suggests new redistributive mechanisms to resolve the problem of equality. Other work describes the law’s evolution towards more ‘familial’ approaches as ameliorating the unfairness of market norms applied to intimate relationships. This thesis adds to the literature by using relational theory to focus instead on equity’s existing property-based distributive framework, charting a course through the tensions inherent in the application of market principles to the intimate context. The tensions of individual and community, market and home, arise from the tenets of liberalism built into private law.
    [Show full text]