Professional Documents
Culture Documents
Equity Law
Equity Law
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CHAPTER 1 Overview of Resulting Trusts
Girozentralle v Islington
HELD: all agreed there could not be a resulting trust because trusteeship requires
consequence of recipient to be affected. Since the council did not know of the ultra
vires problem when they entered into the agreement, there could be no trust. The
outcome followed from applying the presumptions of resulting trusts. An automatic
resulting trust arose when an express trust failed to dispose of the whole equitable
interest, which was not the case here. A presumed resulting trust, which was relevant
here, arose when transferor could be presumed to have intended to create a trust rather
than an outright transfer. On the facts, the bank had intended to part with the money
so the presumption of resulting trust was rebutted.
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A resulting trust arises in two sets of circumstances:
a) A counter-presumption of advancement; or
b) Direct evidence of A’s intention to make an outright
transfer (though necessary to consider whether
evidence is admissible in court).
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CHAPTER 2 Voluntary Transfer / Purchase Money Cases
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ACTIVITY 1 Structure for Voluntary Transfer Cases
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1. The Presumption of Resulting Trust
1.1 Voluntary Transfers
FACTS and RATIO: resulting trust was found to exist where a woman opened a
bank account in favour of her infant nephew. In 1981 Mrs Thavorn opened an
account with £20k in her nephew’s name. She directed the bank that she alone
was to operate the account. Lloyd J said in these circumstances there was no
evidence to rebut the presumption of a resulting trust: “there was not the slightest
evidence on which I could hold that, by opening the account in his name, she
intended to transfer any beneficial interest to him during her lifetime”. The bank
was liable to pay damages when they paid money into his current account.
QUESTION: what were the aunt’s motives, if they were fraudulent could she still
benefit from the presumption?
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e.g. the fact the parties were strangers would point to a
resulting trust.
FACTS: Mr and Mrs Abrahams joined National Lottery syndicate. Each person
became a member and each members weekly contribute was £1. Membership was
15 in total. There were no written rules, nor any formal meetings of the members.
Mrs A left her husband later. At the early stage after their parting, Mrs A
continued to pay £1 a week as her membership of the syndicate and a further £1
per week for her husband. Later, after a row with Mrs A, Mr A refused to repay
Mrs A for subscriptions paid on his behalf. Nevertheless, Mrs A continued to
make £2 per week contributors for herself and her husband. There was no secrecy
about the amount and extent of her contribution and no syndicate member
objected. Mrs A intended that if there should be any substantial wills, she would
be entitles to two shares rather than one. Mr A was declared bankrupt later. The
syndicate won X amount. Mr A’s trustee in bankruptcy claimed Mr A’s one-
fifteenth share.
HELD: Mr A held his share on resulting trust for Mrs A. There was no intention
of gift to rebut the presumption of resulting trust. Thus, Mr A’s share belonged in
equity to Mrs A, and was not available for Mr A’s creditors. There was little or no
evidence to rebut the presumption of resulting trust in favour of Mrs A.
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Parrott v Parkin
FACTS: X and Y purchased a yacht, registered in X’s name even though Y had paid
55% of purchase price.
Curley v Parkes
RATIO: payment must be part of the purchase price (not, say, legal fees etc.) and it
must be made at the time of the initial purchase. Payment of the whole or part of the
deposit or any other contribution to the purchase price at the time of the purchase will
qualify. Many purchases are funded by a mortgage loan which is gradually repaid in
monthly instalments; payment of mortgage instalments and other outgoings after the
date of the purchase will not give rise to resulting trust.
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NOTE: if unmarried couples split up, courts may have to determine ownership
of their former home, but courts are moving away from using resulting trusts
as means of determining shares of cohabitees in the home, recent cases have
been decided on basis of constructive trusts instead.
Resulting trusts have a part to play where parties buy property as an
investment rather than a home for themselves.
Laskar v Laskar
FACTS: a mother and daughter bought a house together, which they let to tenants.
The value of the house was £79k but was bought at a discount of £50k owing to
mother’s previous occupation as a secured tenant. The daughter paid £3k, and £43k
came from a mortgage loan, and the mother paid remainder. The daughter claimed a
joint beneficial interest in the property.
HELD: generally where members of family purchased property in their joint names,
there would be a presumption of equal interest, but that this would not apply where
property was purchased as an investment when the beneficial interest would reflect
their respective contributions to the purchase price by virtue of a resulting trust
analysis. Consequently, the mother’s discount was reflected in her interest. Since the
mortgage loan was taken out in their joint names and they were jointly and severally
liable for repayment they had an equal interest to the extent of the mortgage loan. The
court said the daughter should have a one-third beneficial interest and this was
thought to be a fair result.
COMMENT: not argued the presumption of advancement applied, and the Court
suggested that that was correct, apparently because the daughter was over 18 and
managed her own financial affairs.
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2. The Presumption of Advancement (Gift)
Bennet v Bennet
FACTS: concerned a transaction between a mother and her son and the presumption
of advancement in equity. The mother wanted to help her son who was in some
financial difficulty. Consequently, she gave him £300 in the way of loan.
Unfortunately, the son went bankrupt anyway and could not pay his debts. The trustee
in bankruptcy tried to claim what was left of his money.
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HELD: the money she had given his son was a loan to help him deal with his
financial difficulties. Additionally, in equity, there was said to be no presumption of
advancement between mother and her child, as there was no moral obligation for a
mother to provide for her child. This could only be a father or a male figure. The £300
sum was held on a resulting trust for the mother as a consequence.
Pettitt v Pettitt
*?
FACTS: a woman purchased a matrimonial home for herself and her husband to live
in out of her own sums and conveyed the home into her own name. They cohabited
the home together, during which the husband made alterations and improvements to
the home. Following their divorce, the former husband claimed that he had a
beneficial interest in the home as his contributions to the property increased its value.
HELD: improvements made to the home did not entitle the husband to an equitable
interest in the property. The voluntarily undertaken improvements and decorations of
a family home served the purpose of making “the home pleasanter for their common
use and enjoyment”. In the context of a family home, the court cannot impute an
implied common intention between spouses that regular and/or leisure undertakings to
decorate a home can alter existing proprietary rights in the home; the conduct of the
spouses does not give rise to such an intention and it was only claimed after
matrimonial difficulties occurred. The court dismissed an argument there is a
presumption to treat payments made from a husband to a wife as advancements
as being out-dated and motivated by policy concerns of a different social era. The
husband thus had no equitable interest in the matrimonial home.
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The presumption of advancement, i.e. gift, may be rebutted easily in the
appropriate circumstances.
McGrath v Wallis
FACTS: a father (who was unemployed at the time) and son both provided some of
the purchase money to buy a house. The house was conveyed into the son’s name
alone at the request of the mortgage provider, who did not lend to people of the
father’s age. When the father died, the son claimed the father’s contribution to the
purchase price was a gift to him by reason of the presumption of advancement.
HELD: argument was rejected. The reason for the house being in the son’s sole name
was a technicality; it was not a gift, and so presumption of advancement was rebutted.
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More likely to be a resulting trust if X and Y are strangers than family
members.
Explanation as to why property was put into Y’s name could exclude
presumption of advancement (McGrath v Wallis).
Marshal v Crutwell
FACTS and RATIO: a husband (H) in poor health converted his bank account to a
joint account, giving his wife (W) power to draw cheques. W did subsequently draw
on the account for household expenses, but always at H’s direction. On H’s death, W
claimed the balance of the account by right of survivorship, but judge said H had
never intended to give W ownership. On the evidence, the joint account was solely for
convenience and created no presumption of advancement.
Warren v Gurney
FACTS: the appellant, at that time single, was engaged to be married to her present
husband. In that year her father bought a house called “Fairview” and paid £300 for it.
The conveyance was taken in the name of the appellant though the father retained the
title deeds that were still in his possession at the time of his death. The appellant
claimed to be entitled as the owner of “Fairview” to the possession of the title deeds.
The respondents, executors of the will of the appellant’s father, denied the appellant
was the owner of “Fairview” and contended she was a trustee of the property of her
father.
HELD: though obvious inference was that property was a gift for daughter’s
wedding, the father had retained the title deeds until his death, and there was actually
evidence the father intended his son-in-law to repay the cost of the house too.
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(where a parent “helped out” with the purchase of a family home for a child,
only to regret having done when child’s marriage or relationship ends)
Loosemore v McDonnell
FACTS: father helped son and daughter-in-law financially to purchase home and at
the time father confirmed he claimed no interest in the money and no wish to secure
money by way of charge over property. The son and daughter-in-law divorced and
father sought to claim presumption of resulting trust.
Shephard v Cartwright
FACTS: father caused shares in a company to be allocated for himself, the wife and
his three children. At all material time, the father was in control of the family’s
financial concerns and the divisions were created for to reduce the amount of tax
payable on dividends declared over those shares. The wife and children at all material
time consented to the arrangement, including executing the power of attorney to
facilitate the withdrawal of money. Dividends from the shares allocated with the
children were treated as their income. It was argued on behalf of the father’s estate, in
resisting the children’s claim to be entitled to the money, the father’s conduct showed
an intention not to vest beneficial interests with the children. This being so, the money
was thus kept under a resulting trust in favour of the father.
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HELD: claim was rejected. There was nothing in the father’s conduct that was truly
inconsistent with the presumption. The facts adduced did not rebut the presumption of
advancement. The father could not resort to the help of his subsequent treatment of
the shares and dividends; neither could he rely on the fact the children signed
documents at their father’s instruction plainly without understanding what those
documents’ meant. As a consequence, the father’s executors were required to hold the
shares on trust for the children to give effect to the presumed advancement.
JUDGEMENT: “acts and declarations of the parties before or at the time of the
purchase, or so immediately afterward as to constitute part of the transaction, are
admissible in evidence either for or against the party who did the acts or made the
declaration [...] but subsequent declarations are admissible only against the party who
made them, and not in his favour”.
(OBITER- where property is put into a solicitor’s name perhaps more likely a
resulting trust as opposed to a gift)
Fowkes v Pascoe
FACTS: Mrs Baker transferred property into the joint names of herself and her
daughter-in-law’s son by the daughter-in-law’s second marriage. There was a close
relationship between Mrs Baker and her daughter-in-law, which was not diminished
when the daughter-in-law remarried. She regarded the children of the second marriage
as being members of her family (i.e. like her grandchildren). When Mrs Baker died,
the question arose as to whether the son held the property on resulting trust for Mrs
Baker’s estate.
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HELD: the presumed resulting trust (transfer without consideration) had been
rebutted on evidence that actually the transfer was a gift.
FACTS and RATIO: the court held a conveyance of real property from a father to
his adult son created the presumption of advancement. This presumption was not
rebutted when the son allowed the father to receive the rents from the land. Such
conduct was treated as an “act of reverence and good manners”.
Trustees will hold the property on a result trust for the settlor.
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ACTIVITY 2 Examples of a Failure to Dispose of Equitable Interest
1. There is a gap in the beneficial ownership because the trust does not name a
beneficiary who attains a vested interest.
3. Attempted trust does not define beneficial interests with sufficient certainty.
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CHAPTER 4 Constructive Trusts
Question 2 specimen
Question 6 on both past papers
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ACTIVITY 1 Constructive Trusts of the Family Home
Where parties purchase home in their joint names, legal title will be held as
joint tenants.
Question: what about beneficial (equitable) interest?
Express declaration of trust: to be enforceable, must be evidenced in
writing to satisfy Section 53(1)(b) of the Law of Property Act 1925; if
parties hold as tenants in common, their respective proportions will
inevitably be stated (this is conclusive in absence of fraud or mistake); if
equitable interests are expressed to be held as joint tenants, in absence of
fraud or mistake this is conclusive; parties will have equal shares in sale
proceeds if property is sold.
Trusts not expressly declared
Stack v Dowden
FACTS: defendant bought a house in her sole name in which the parties lived
together as husband and wife, they had four children. The defendant, who throughout
their time together earned more money than the claimant made all the payments due
under the mortgage and paid the household bills. The parties did a great deal of work
in improving the house and in 1993 it was sold for three times the figure the
defendant had originally paid for it. The parties then bought another property, which
was conveyed into their joint names, as their family home. Over 65% of the purchase
price was paid out of funds from a building society account held in the defendant’s
sole name, funds which included the equity liquidated from the sale of the previous
house. The balance of the purchase price was provided by a loan secured by a
mortgage in the parties’ joint names and two endowment policies, one in their joint
names and one in the defendant’s sole name. The claimant paid the mortgage interest
and the premiums due under the endowment policy in their joint names and the
defendant paid the premiums due under the endowment policy in her sole name. The
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parties kept separate bank accounts and made separate savings and investment. Over
the course of their years in the house together the mortgage loan was paid off by a
series of lump sum payments of which the defendant provided just under 60% of the
capital. The parties separated in 2002 and the claimant left the property while the
defendant remained there with the children.
HELD: the House of Lords held in such a case, in which property was conveyed into
joint names without any express declaration of trust, the presumption was the
parties intended a joint tenancy in equity, as well as at law. To rebut this
presumption, the party seeking to show the beneficial interests were different
would need to prove the parties held a common intention to that effect. In
determining whether the parties had such a common intention, their whole
course of dealing regarding the property should be looked at; financial
contributions were only one factor. On the facts of the case, Mrs Dowden had
discharged this onus and the parties were tenants in common in shares of 35% to Mr
Stack and 65% to Ms Dowden. In determining the beneficial interests in property
in the absence of any express declaration of trust, the starting point was that
equity followed the law. Thus if the property is in the sole name of one person,
the law presumes there is no trust. If the property is in joint names, the starting
point is there is an equitable joint tenancy mirroring the legal joint tenancy. The
onus was on the person arguing the beneficial ownership differed from the legal
ownership to prove it.
Baroness Hale said in deciding whether the property was held on the terms of
a trust that differed from the legal title, the search was “to ascertain the parties’
shared intentions, actual, inferred or imputed, with respect to the property in the
light of their whole course of conduct in relation to it”. There were “differences
between sole and joint names cases”. In a joint-names case, it was clear the parties
intended a trust and the question was on what terms. In a sole-name case, the party
alleging a trust would first need “to surmount the hurdle of showing that she had
any beneficial interest at all”.
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surmounted, and accordingly she said many factors were relevant, including: any
advice taken or discussions at the time of transfer; why the acquisition had been
in joint names; the nature of the parties’ relationship; whether they had children
whom they were both obliged to house; how the purchase was financed; and how
the parties arranged their other finances. Taking all of these factors into account,
Baroness Hale said that “cases in which the joint legal owners are to be taken to
have intended that their beneficial interests should be different from their legal
interests will be very unusual”.
There is a presumption the sole legal owner also owns the entire equitable
interest UNLESS there is an express declaration the legal owner holds on trust
for another.
A claimant asserting he has an equitable interest has various options:
i. Resulting trusts
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Size of the equitable interest reflects the proportion of purchase
price contributed.
NOTE: constructive trusts are more appropriate to determine
the equitable interests of cohabitees in a property purchased as
their home (Stack v Dowden)
FACTS: A semi-derelict farmhouse was put in H’s name. The house was to be the
family home and renovated as a joint venture. H’s wife, W, oversaw all of the
building work. W had been led to believe the property was to be acquired without a
mortgage. However, H did acquire the property with a mortgage registered in his sole
name. H fell into arrears on the mortgage and the mortgagee bank sought repossession
in lieu of money owed by H under the mortgage. W sought to resist an order for sale
in favour of the mortgagee, inter alia, because of her equitable interest in the property
that she claimed granted her an overriding interest on grounds of actual occupation.
HELD: W had acquired no equitable interest in the property. Lord Bridge’s speech
laid out two criterions for a common intention constructive trust to be formed. There
must be:
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1. A common intention: this test fell into two halves and so created two distinct
forms of common intention constructive trust.
Grant v Edwards
FACTS: Mr Edwards, the defendant, purchased a
house. The house was conveyed into Mr Edwards
name and that of his brother. Mr Edwards had told
the claimant, Mrs Grant who was pregnant with his
child, that her name should not be added to the legal
title as it may affect her divorce. A deposit was
provided by Mr Edwards alone and the remainder
was raised by two mortgages. Mr Edwards paid the
mortgage instalments for the first mortgage. There
was some dispute as to repayment of the second
mortgage. Mrs Grant though made substantial
contributions to the housekeeping that enabled Mr
Edwards to meet the mortgage instalments.
HELD: Mrs Grant was entitled to half of the
beneficial interest under a constructive trust. There
was a common intention that she was to have a
share in the property. She had acted to her detriment
by making substantial contributions to the
household expenses that would not have done unless
she had believed she would have an interest in the
house.
Curran v Collins
FACTS: the claimant, Ms Curran, and the
defendant, Mr Collins, were in a relationship and
shared a common interest in breeding dogs. The
defendant had purchased various properties over a
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period of time in his sole name, including one called
The Haven. Their relationship ended and the
claimant sought a share in The Haven.
HELD: the giving of an excuse why the claimant’s
name is not on the title does not necessarily
constitute an express common intention the claimant
has an equitable interest. Mr Collin’s “excuse” did
not indicate a common intention that Ms Curran had
an equitable interest.
JUDGEMENT: “Not only did the parties have no
express agreement about sharing the ownership of
the properties, but also, on Mr Collins’ case, he
made it expressly clear to her that the property
purchases were his alone. That was sufficient to
negate any reasonable belief in any common
intention. However, there was one exception to this
and that arose out of an episode at the time of the
purchase of the Feltham house. Ms Curran raised
the subject of her having a share of the property
with Mr Collins and he told her that it was too
expensive for her name to be on the property
because it would involve paying the premia for two
life insurance policies (“the Excuse”). On Ms
Curran’s case this statement was impliedly made on
the basis that Mr Collins accepted that, but for the
expense, she should be an owner of the properties.
The judge rejected this argument and found that Mr
Collins had made the statement to avoid any
embarrassment over his refusal to make Ms Curran
a co-owner and that accordingly it was sufficient to
exclude any shared intention that Ms Curran should
have an interest in the property.”
COMMENT: unlike Grant v Edwards, the Feltham
property was not bought as a family home,
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moreover the excuse in this matter was also
different. The excuse in Grant v Edwards was a
positive assertion the property would have been
acquired in joint names but for the excuse; the
excuse here was a negative representation, i.e. the
house will not be bought in joint names because of
the expense of doing so.
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Le Foe v Le Foe
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husband would not have been able to pay the
mortgage had she not taken responsibility for the
household expenses.
COMMENT: this view was supported, though
obiter, by the House of Lords in Stack v Dowden
and the Privity Council in Abbott v Abbot.
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Meeting some of the household bills may be sufficient if
the payments were substantial and pursuant to the common
intention.
b) A wide definition: “any act done by her to her detriment relating
to the joint lives of the parties is sufficient detriment to qualify.
The acts do not have to be referable to the house”.
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HELD: she had contributed to the purchase price, and this
was conduct that could give rise to a common intention by
conduct. Mrs Cooke fit the Rosset criteria for a common
intention by conduct since her contribution was directly to
the purchase of the house, and that would count as conduct
from which to infer an agreement. A direct contribution to
the purchase price also meets the Rosset criteria for
detrimental reliance.
Stack v Dowden
Jones v Kernott
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remained in the property with their children and paid all
further expenses towards the acquisition of the property.
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Gallarotti v Sebastianelli
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ACTIVITY 2 Constructive Trusts in a Commercial Setting
FACTS: The defendants, Luff Development, acquired a site that would be suitable
for developing property on. Before this acquisition, the defendants made an
agreement with the claimants, Banner Homes Group, that they could develop this site
as a joint venture. While there were many conversations and proposals between the
companies, no written agreement was concluded. However, the defendants changed
their mind about the agreement they had made with the complainants, but did not tell
them in case they made a rival offer before they acquired the site.
ISSUE: the trial judge had dismissed the constructive trust claim based on the fact
that there was no signed and written agreement between the parties. Banner Homes
Group appealed this decision and the issue in the case was whether this agreement
amounted to a constructive trust.
HELD: under equity it would not be right for the defendants to be the sole beneficial
owner for the joint venture. The fact that the Luff Development did not want to
inform the complainants indicates a prior agreement. Chadwick LJ affirmed Pallant v
Morgan and explained the how it would come into play. It was said the Pallant v
Morgan equity would be invoked where the defendant has acquired property in
circumstances where it would be inequitable to allow him to treat it as his own – there
are two requirements that have to be satisfied:
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2. X should do or refrain from doing something in reliance on the
arrangement, and X’s act or omission confers a benefit on Y or is
detrimental to X’s ability to acquire the property.
Both these requirements were held to be present. First, there was a clear arrangement
that Luff Development should acquire a property and that Banner Homes Group
should have an interest in it. Secondly, Banner Homes Group had acted in reliance on
that arrangement to its detriment because they had kept out of the market and not bid
for the property. This decision not to compete for the purchase of the site obviously
conferred an advantage of Luff Development because it acquired the site more
cheaply (though not necessary to prove both detriment to one party and advantage to
the other; either would suffice).
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Pascoe v Turner
FACTS: the claimant and defendant lived together in a house owned by the claimant.
They were not married but lived as if they were. Later the claimant met another
woman and left the defendant. He told her she could have the house but never
formally transferred the title. She remained in the house and spent money on
redecoration and improvements in the belief that she owned the house. He was aware
of her expenditure and belief but did nothing to prevent either. Later he brought an
action seeking to evict her. She entered a defence and a counter claim.
HELD: she could remain in the house and was entitled to have the title transferred to
her through proprietary estoppel. He was estopped from denying her an interest in the
house after they had effected improvements etc. in reliance on his assurance the house
was hers. He (the legal owner) had stood by and said nothing while she carried out
home improvement works, although contrary to Section 53(1)(b) of the Law of
Property Act 1925, there was no written evidence of a declaration of trust in her
favour, equity would not allow him to deny his assurances when he actually had
allowed the claimant to act to her detriment.
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1 Establishing the Equity
Legal owner must have behaved in a manner whereby the claimant believes
they have, or will get, some rights regarding the property (the “expectation”),
and so the claimant has acted to his detriment in consequence of this belief,
such that it would be unconscionable for the legal owner to insist on their
strict legal ownership.
i. Active assurance
Inwards v Baker
ii. Passive assurance (i.e. where legal owner stands back and lets the
claimant act to his detriment in the belief he is entitled to an interest in
the property)
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Gillet v Holt
36
Thorner v Major
37
NOTE: the claimant must act to his detriment in reliance on the assurance
(there must be a casual connection between the assurance and the detriment),
however the promises relied on don’t have to be the sole reason for the
claimant acting to his detriment, but must be a reason (onus being on the
claimant to show the causal connection as a matter of fact).
Re Basham
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Greasley v Cooke
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2 Satisfying the Equity
Remedy should be the minimum to satisfy the equity, i.e. to award the
appropriate minimum remedy to do justice (varies on the facts of each case).
Jennings v Rice
FACTS: concerned J’s claim to some or all of R’s estate. R was a wealthy widow
who died intestate. For many years, J had worked for free for R even sleeping on the
sofa in her home rather than at his own home. R encouraged J to believe that he
would receive a substantial sum under the terms of her will. Despite this, she died
intestate.
HELD: At first instance, J was awarded £200k calculated by reference to the cost that
would have been incurred had she paid for the care he gave her. J appealed on the
basis that the promises made to him had lead him reasonably to expect a more
generous share of her estate. The English Court of Appeal upheld the award at first
instance.
NOTE: where claimant and defendant reached a mutual bargain, and A and B
regard the expectation as basically equivalent to the detriment, the court may
well fulfil the expectation whatever it may be; though where claimant’s
expectations are uncertain, or not focused on specific property, don’t reflect
defendant’s assurance, or bear no relation to the amount of detriment, the
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court may take the claimant’s expectations as a starting point but will consider
other factors:
1. Unconscionability;
E.g. court will not compel people to live together when this
may be the last thing they want to do.
NOTE: focus must though still remain on what is faire and proportionate
between the parties.
FACTS: a supermarket chain built a store near J’s property (at that time J’s property
was owned by his predecessor H). An access road was built from the public highway
to the supermarket on land to the rear of J’s property privately owned by the Council.
During the procedure leading to the grant of planning consent for the supermarket, H
was given to understand by the Council that he would have an easement over the
private road from the rear of his property to the public highway. The supermarket
built a new fence and gate at the rear of H’s property and H moved the garage on his
property to make use of this access point and built a new drive between the access and
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the garage. H then used the private road as envisaged. J was now the owner of H’s
property. He was a developer intending to develop his property (perhaps jointly with
neighbouring properties). He relied on proprietary estoppel to claim the formal grant
of an easement in terms that would allow the access to serve the joint development of
his property and the neighbouring properties. The Council denied that there was an
estoppel but they did not (in their pleadings) deny that if there were an estoppel then
the benefit of it would pass to J.
HELD: the proprietary estoppel claim failed at first instance because the judge
thought that, while the central elements of proprietary estoppel were present, the
Council had done nothing that was unconscionable. It allowed J to use the access
point. It was simply refusing to make a formal grant. There was nothing
unconscionable in this refusal.
On appeal, J successfully argued that the formal grant of the easement was the
only response that was fair and proportionate as between the parties (the English
Court of Appeal’s re-casting of ‘the minimum equity to do justice to the claimant’
following Jennings v Rice).
Davies J: “that leaves the final question: what does equity require in order
to do justice to the claimant? Although the not unfamiliar phrase ‘the
minimum equity to do justice to the claimant’ was used by the judge, and
deployed in argument before us, the overall focus has to be on what is fair
and proportionate as between the parties”.
Moreover, Davis LJ thought actually this case was regarding mutual understanding.
The fact that J was, in fact, being allowed to use the road was no answer to the claim.
Davis LJ: “the fact that the Council had not thus far sought to prevent [H]
(or his successors after him [J]) from using the road does not address what
his entitlement was or the issue of unconscionability arising from the
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Council’s initial conduct at the time and then its subsequent resiling from
its position.”
The fact that time had elapsed between the assurance and the proceedings did not
mean that J was only entitled to a lesser relief than that which would have been
available had the proceedings been brought earlier.
The formal grant should be limited to use of the present single dwelling on the
property and not for any more extensive purpose.
Davis LJ: “[H] clearly was concerned about potential devaluation of his
property by the scheme. There is, however, nothing to show […] that he
engaged in any grandiose access works near the rear gates compatible with
potential future development. Moreover, there is also nothing to show [H]
had at any time any expectation of future development […] or had in
mind, or had any wish for, any vehicular right of way more extensive than
one serving a sole dwelling house […] That the claimant himself is a
developer, harbouring development plans, is nothing to the point: he
cannot be in any better position than [H].”
Davis LJ also decided that there was no requirement for the representor to know of
the acts of detrimental reliance of the representee.
Davis LJ: “this was a case of encouragement, on which there was in fact
detrimental reliance. It was known what [H] intended to do. It is not an
invariable requirement in a case of this particular kind – indeed it is
contrary to the flexible approach which the more recent authorities
establish – that the person encouraging necessarily must know just what
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the person encouraged may have actually done in reliance on the
encouragement.”
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