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Lecture Notes - Constructive Trusts
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Lecture Notes - Constructive Trusts
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Constructive Trusts – Lecture 10Quantification and legal reform
Rossett is still good law. Still the starting point for the acquisition of an interest, despite the
open disapproval and the open attacks from other judges, an appeal on the issue of
identification still hasn’t come before the supreme court. Remember that the deception point
didn’t quite make it through to Rosset.
Stack v Dowden (2007): Joint names case, both own interest in law. So far cases have been a
sole name case. The question is how much of an interest do they each have, i.e.
quantification. (You can skip the Rossett stage when it comes to joint names case and move
straight to quantification – this is the reason that Stack did not overrule Rosset, it dealt with a
different aspect of the law). So, they both own in law, and in equity. Both contributed to
payments, kept their finances separate.
Lord Walker: the law should recognise that by taking a wide view of what is capable
of countring as a contribution towards the acquisition of a residence, while remaining
skeptic al of the value of alleged improvements that are really insignificant, or
elaborate arguments as to how family finances were arranged. He also addresses the
point that it only counts when you contribute at the beginning, he says “the process of
buying a house does very often continue, in a real sense, throughout the period of its
ownership”. I.e. you carry on buying the house even after you have moved in. This
approves LJ Chadwick in previous case.
Lady Hale: did the parties intend their equity interests to be different from their legal
interest, i.e. 50/50. If so, prove why you should get more. Equity, at the start, follows
the law. Context is everything. The division is not always just about the maths. The
starting point: if one party wants to show they should have more than half the interest,
which is the presumption, they must show there was a common intention that they
should hold the property otherwise. The fact that they kept their finances separate,
means they did not intend it to be equal.
She also makes the distinction between commercial and domestic setting. When a couple are
joint owners of the home and jointly liable for the mortgage, the inferences to be drawn from
who pays for what may be very different from the inferences to be drawn when only one is
owner of the home. The arithmetical calculation of how much was paid by each is also likely
to be less important. It will be easier to draw the inference that they intended that each
should contribute as much to the household as they reasonably could and that they would
share the eventual benefit or burden equally.
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