1.

Constructive Trust (CT) Institutional

VS Remedial
No
coherent
Definitio
n?

Substant
ive
Institutio
n VS
Remedial

CT under
English
law

- RT implied by law, CT imposed by law when courts require an

owner, as a result of his conduct, to hold property as trustee for
the benefit of those who are prejudiced by his conduct
- Not necessary based on presumed/common intention of
properties in a property transaction
P. Sukninder,
Has been opined that finding a coherent and
Principles of
unifying definition of a constructive trust is
Property Law (2000), almost an impossible task
p.154
See, generally,
In the course of its history, the constructive
Oakley, Constructive trust has operated in so MANY DIFFERENT
Trustees (3rd edition, contexts that it is impossible to extract any
1997)
principle that can unify the circumstances in
which the trust is imposed.
P. Sukninder,
Has been suggested that the appropriate
Principles of
way to understand the doctrine of
Property Law (2000), constructive trust is to examine it in the
p.155
various contexts in which it operates
Institutional
Remedial
IMPOSED b/c certain FACTS
IMPOSED to REVERSE an unjust
make it UNCONSCIONABLE
enrichment; NOT unconscionable
for 1 person who has the legal
conduct of parties
title to property to deny
another person the beneficial
ownership therein.
e.g. England
E.g. Canada, America
Recognize pre-existing existing more powerful property concept
relationship between
than institutional CT b/c it is NOT
parties/interest that already
imposed due to the presence of
exist
certain pre-existing property
rights, once imposed by the court,
the remedial constructive trust
has the effect of ALTERING
substantially pre-existing property
rights
Beatty v
E.g. America CT as device to remedy
Guggenhiem
unjust enrichment - Cardozo J: the
Exokiration Co
formula through which the conscience of
(1990) 225 NY 280
equity finds expression. When property has
at 386
been acquired in such circumstances that
the holder of the legal title may not in good
conscience retain the beneficial interest,
equity converts him into a trustee
P. Birks, The Frontier Has been argued that it is for this reason,
of Liability (1994)
and others, that the remedial type of CT has
Vol 2, pp 163-223
yet to find a safe home in English law.
Institutional view: CT should only be imposed upon the occurrence
of certain EVENTS that make it UNCONSCIONABLE for the
legal owner of property to deny the beneficial interest therein to
a non-owner

Land Law I | L6 Constructive Trust (Draft)

Westdeutsche v.
Islington London
Borough Council
(1996) AC 669, per
Lord BrowneWilkinson
Rule
under
English
law

Commented that such a trust is imposed on a

person by reason of his unconscionable
conduct:- arises by operation of law as
from the date of the circumstances which
give rise to it: the function of the court is to
merely declare that such a trust has arisen
in the past.
CT only arise in a number of accepted situations, although not
closed but cannot be categorized simply wherever justice so
requires

2. Matrimonial Home
Note

Common
cases

Relevant
Principles

RT and CT have been pushed into the limelight in recent years in

respect of the ownership of: (i)
the matrimonial home; or
(ii)
the home of cohabitees
- Early years of their marriage or relationship, a husband and his
wife or a male partner and his female partner may buy a flat
with the aid of a mortgage.
- Legal title put under 1 partys name husband/wife
- Initially, the wife/female partner may go out to work and
contribute to the family finances, e.g. she may

help repay the mortgage repayments directly; or

pay for other family household expenses.

- Children may then be born and the wife or female partner may
give up work to stay at home to look after the children.
- If the relationship then ends, either as a result of a break-up or
the death of one of the parties, the question may arise as to
WHO owns the flat?
- Ownership on the matrimonial is NOT governed by any special
rules
- Thus, if property is held in the SOLE name of a husband/male
partner, then he is the SOLE legal owner and prima facie, his
legal estate ALSO carries with it the WHOLE beneficial interest,
to the exclusion of the female partner.

a. Upon Divorce Power of the Courts

Rule
Section
25(2)(f) of
Matrimonial
Causes
Ordinance

Courts have now been given wide powers to alter the parties
beneficial ownership of the matrimonial home and other assets
upon divorce
Upon the divorce of married couples, the court has power to
VARY their property rights by taking into account the
CONTRIBUTIONS made by each party to the welfare of the
family, e.g.

looking after the home; and

caring for the family.

b. Upon Breakdown of an Informal Union Equity

Rule

E.g. in

STILL necessary to rely on general equitable principles to

determine the ownership of their home in other circumstances
b/c court has NO power under s.25(2)(f) of the Matrimonial
Causes Ordinance to make adjustments

(i)

separation (instead of divorce) of a married

Land Law I | L6 Constructive Trust (Draft)

these
situations

(ii)
(iii)

(iv)
Windeler v.
Whitehall
(1990) 2
FLR 505

*Solutio
n
Establis
h Trust

couple;
the breakdown of an informal union;
the death (if the surviving partner wishes to
obtain more than the share he/she is entitled to
under the deceased owners will or the intestacy
rules) of the legal owner; or
bankruptcy of the legal owner.

Court reinforced the view that there is NO power for the court
to order a property transfer on the breakdown of a
relationship between unmarried partners.
- Instead, the rights of couples, married or not, in these
situations will be determined according to strict property
law principles.
- If the property is held in the SOLE name of one partner, may
be possible for the non-owner to claim that the owner holds
the property on TRUST for BOTH of them.
- Recall: s.5(1)(b) of the CPO stipulates that a formal
declaration of trust must be made or evidenced IN WRITING
and SIGNED by the declarant.
- BUT, there is usually NO formal declaration of trust between
married or unmarried couples.
- Claimant can establish a Resulting Trust, implied or
Constructive Trust
- S.5(2) of the CPO provides that the requirement for writing in
s.5(1)(b) of the CPO does NOT affect the creation or operation
of resulting, implied or constructive trusts
No writing requirement for these types

3. Distinguishing between RT, Implied & CT

Common Intention
a. CT Requires Common Intention
Rule to
establish
Constructiv
e Trust

Common
Intention

There must be:

(i)
an intention between the parties that the non-owner
is to have an equitable interest; and
(ii)
that it would be inequitable for the owner to deny
such an intention because the non-owner has:
relied on that intention; and
acted to his/her detriment
Refers to the intention the owner and the non-owner had in
COMMON that the non-owner would be entitled to a SHARE
of the equitable ownership of the property

b. Compare RT, implied, CT

Rule
(Gissing v
Gissing
(1971),
Lord
Diplock)
Main
difference
lies in

Unnecessary to distinguish between a resulting, implied or

constructive trust

- Input: kind of CONTRIBUTIONS provided by the claimants of

these trusts &
- Outcome: SIZE of their beneficial shares of the property,
should their claims succeed

Land Law I | L6 Constructive Trust (Draft)

c. Resulting Trust & its Limitation

Presumptio
n of
Resulting
Trust:
Rebuttal of
presumptio
n of RT
Presumptio
n of
advanceme
nt:
Ascertainin
g the Size
of
Entitlement
:
Prerequisite:
Limitation
of RT

If X provided financial contribution to purchase the property,

Z is presumed to be holding part of the property registered in
Zs name, on a resulting trust in Xs favor, to the extent of Xs
financial contribution.
By the evidence of advancement, that is, the contribution was in
fact a GIFT made in view of the close relationship between the
parties. BUT,
- unlike a sum of money or a thing paid or given by a husband
to his wife, there is NO traditional presumption of
advancement in the money or anything paid or given by a
wife to her husband; and
- for a relationship between unmarried partners, there is
NO traditional presumption of advancement.
Court will take into account payments such as:
- payment of purchase price;
- payment of mortgage instalments, so long as these
repayments are regular and substantial.
financial contribution
- Need for a financial contribution reduces the effectiveness of a
resulting trust as a REMEDY for a spouse or an unmarried
partner who has made NO financial contributions.
- What kind of remedy is available if, in view of his/her mainly
NON-FINANCIAL CONTRIBUTIONS, such as
doing the housework; or
giving up a well-paid job to stay at home to look after the
children of the union to enable her/her spouse or his/her
partner to concentrate on developing her/his career,
- Claimant (that is, the non-owner) STILL feels that he/she
deserves a beneficial share of the owners property?

d. Possible Solutions to Limitation of RT

Possible Solution 1 Doctrine of Family
Asset
s.6 of the
Married
Persons
Status
Ordinance
(Cap. 182)
Gissing v.
Gissing
(1969) 2 Ch
85, Lord
Denning
MR
Note

[i]n any question between husband and wife as to title or

possession of property, either party ... may apply by summons or
otherwise in a summary way to any judge ... and the judge ...
may make such order with respect to the property in dispute ...
as he thinks fit.
[W]here a couple, by their joint efforts, get a home and
furniture, intending it to be a continuing provision for them for
their joint lives, it is the prima facie inference from their
conduct that the house and furniture is a family asset in
which each is entitled to an equal share.
- Doctrine of family assets enabled the courts to move
beyond the established principles of law which would
otherwise have been applied to these cases.
- These developments seemed to reflect a feeling among some

Land Law I | L6 Constructive Trust (Draft)

House of
Lords in
Pettitt v.
Pettitt
(1969) 2 All
ER 385 and
Gissing v.
Gissing
(1970) 2 All
ER 780
Pettitt v.
Pettitt, ,
Lord Reid
**Family
doctrine
doesnt
work

English judges that those traditional principles were

inadequate to deal with property disputes between married
couples.
Concept of family assets was rejected by the House of
Lords:s.17 of the Married Womens Property Act was purely:
procedural in nature;
conferred NO discretion on the court to interfere with
existing property rights; and
therefore, did NOT entitle the courts to VARY the spouses
respective proprietary interests.
I would therefore refuse to consider whether property
belonging to either spouse ought to be regarded as family
property for that would be introducing a new concept into
English law and NOT merely developing existing principles.

Possible Solution 2 Constructive Trust

Court
- Claimant is able to acquire an equitable interest in a
developed
property NOT merely on the basis of a financial contribution
concept of
(a resulting trust)
Constructiv - BUT in FULFILMENT of some common intention between
e Trust
the claimant and the legal owner of the property that the
claimant should be entitled to a share of the ownership.
Requiremen
Resulting Trust
Constructive Trust
t for RT vs
- Contribution to purchase
- Common Intention +
CT
price serve as evidence to
- Detriment
establish
- BUT need not be so closely
- Required (presumed)
connected
intention +
- Detriment

4. Express Common Intention Constructive Trust

Recall
Requirement
for CT

(1) Common Intention

An intention between the parties that the non-owner is to

have an equitable interest

(2) Detrimental Reliance

Common
Intention
Constructive
Trust
Petitt v Petitt
[1970],

It would be inequitable for the owner to deny such an

intention because the non-owner b/c he/she had: Relied on the intention
Acted to his/her detriment
Refers to the intention the owner and the non-owner had in
COMMON that the non-owner would be entitled to a
SHARE of the equitable ownership of the property
HL held: Court cannot impute an intention or understanding on
the parties when the evidence shows that they had not thought

Land Law I | L6 Constructive Trust (Draft)

Gissing v
Gissing
[1971]
Lloyds Bank
v Rosset
[1991]

about the matter

Lord Bridges dicta: sort of evidence that is necessary to enable
the court to draw an inference of common intention

a. Gissing v Gissing (1971), HL

Parties

- P(W) &D (H), after 25 years of marriage, divorced in 1966 b/c H

left W for a younger woman in 1960
- Property in Q was a house bought in Hs sole name & purchase
$ came from:
a mortgage on the house;
a loan from Hs boss; and
Hs savings.
- W spent220 of her money:
laying the lawn; and
providing furniture for the house
- W & H both worked, W worked as a secretary. Continued to
work & used earnings to buy:
clothes for herself and her child; and
adding to the housekeeping money provided by H.
- While H paid all:
the mortgage instalments;
other outgoings of the home
W continued to live in property until 1966 when they
actually divorced, then W sought beneficial interest in the
property
HL HELD that H was absolutely entitled to the house
and W had NO interest in it by way of a trust.
Ws contributions, such as:
household expenses; and
improvement of the property
were NOT referable to a prior common intention that she
would acquire a beneficial interest in the home.

Property in
Q & Legal
title

Relevant
facts

Held

(i) Main Reason

Main Reason
for courts
denial of Ws
entitlement
Lord Diplock
stated the

general
principles

upon which a
CT would be
inferred

There was NO CONDUCT from which it could be inferred that

the parties had a common intention that W was to be entitled
to a share of the house.
- "A resulting, implied or constructive trust is created by
a transaction between the trustee and the [beneficiary] in
connection with the acquisition by the trustee of a legal
estate in the land, whenever the trustee has so conducted
himself that it would be inequitable to allow him to deny to
the [beneficiary] a beneficial interest in the land acquired.
- And he will be held so to have conducted himself if by his

Land Law I | L6 Constructive Trust (Draft)

words or conduct he has induced the [beneficiary] to act

to his own detriment in the reasonable belief that by so
acting he was acquiring a beneficial interest in the land."

(ii) Two Factors Required to establish CT (from Lord

Diplocks analysis)

(1)
Inducem
ent

(2)
Detrimen
t

The legal owner had in some way induced the claimant to

believe that he/she would be entitled to a share of the
ownership of the property. Such an inducement can take the
form of: (a)
an EXPRESS agreement; OR
(b)
an inference from the parties CONDUCT that there
was an intention of the parties that the non-owner
would acquire an equitable interest in the property
The person claiming an interest in the property must have
acted to his/her detriment in some way by contributing to the
purchase of the property.

(iii) Effect if these 2 factors are present Equity

Intervention
Rule

Lord Diplock:

According to Lord Diplock in the judgment of Gissing, IF two

factors mentioned above were present, the court would NOT
allow the legal owner to enjoy the absolute ownership of the
property FREE from the contributors interest
"I take it to be clear that IF the court is satisfied that it was the
common intention of BOTH spouses that the contributing wife
should have a share in the beneficial interest AND that her
contributions were made UPON this understanding, the
court in the exercise of its equitable jurisdiction would NOT
permit the husband in whom the legal estate was vested and
who had accepted the benefit of the contributions to take the
whole beneficial interest MERELY BECAUSE at the time the wife
made her contributions there had been NO express
agreement as to how her share in it was to be quantified."

(iv) Failure of the Ps Claim in Gissing

Here, Mrs. G
was held
NOT to have
any interest
in the
property b/c
Lord Diplock

- There was NO express agreement; and

- HL felt that her contributions were NOT of such a type as
would entitle the court to INFER from them a common
intention between her and her husband that she would be
entitled to a share of the equitable ownership of the property.
- " The court is NOT entitled to infer a common intention
to this effect from the mere fact that she provided chattels
for joint use in the new matrimonial home; and there is
nothing else in the CONDUCT of the parties at the time of
the purchase or thereafter which supports such an
inference.
- There is NO suggestion that the wifes efforts or her
earnings made it possible for the husband to raise the initial
loan or the mortgage or that her relieving her husband from
the expense buying clothing for herself and for their son was
undertaken in order to enable him the better to meet the
mortgage instalments or to repay the loan.
- The picture presented by the evidence is one of husband and

Land Law I | L6 Constructive Trust (Draft)

wife retaining their separate proprietary interests in

the property whether real or personal purchased with their
separate savings and is inconsistent with any COMMON
intention at the time of the purchase of the matrimonial
home that the wife, who neither then nor thereafter
contributed anything to its purchase price or assumed any
liability for it, should nevertheless be entitled to a beneficial
interest in it."

(v) Role of the Court: Fulfillment of an Intention that

exist
Rule
Institutional
in nature

The essence of the doctrine of CT adopted by the HL as

adopted in Gissing v. Gissing is that the courts role is merely
to FULFIL the intention of the parties, which has already
been formed by the time the case went to court, that they
should SHARE the ownership of the land.
" when it is called a CT, it should NOT be forgotten that the
courts are giving effect to an arrangement based upon the
ACTUAL intentions of the parties, NOT a rearrangement in
accordance with considerations of justice, independent of
their intentions and founded upon their respective behaviour in
relation to the matrimonial home."

Allen v.
Snyder
(1977)

(vi) Criticisms Assumptions, Misunderstandings,

Misrepresentations
Assumptions

Misrepresent
Actual
intention?
artificial
Doctrine of
CT
characterize
d by an
ongoing
tension

- In reality, in some cases where the courts claimed that they

were satisfied that there was a common intention to
establish a trust, the parties involved had actually given little
or even NO thought to their intentions.
- This is because issues such as the ownership of the property
may have been assumed or misunderstood by the parties
involved, especially where they are married or involved in an
informal union.
- Indeed, a husband may even have actually lied or
misrepresented his intentions to his wife in order to take
advantage of her trusting nature or naivet.
- In these cases, it can be argued that the emphasis on the
"actual intentions" of the parties is, to say the least,
artificial.
(i)
the desire to ensure that just and fair results are
achieved; and
(ii)
the continued emphasis on the NEED to enforce
the ACTUAL intentions of the parties.

b. Applying Gissing Criteria for CT: Lloyds Bank

PLC v. Rosset (1991)
Facts
Property in Q

- W claimed CT trust over ownership of home under the name

of H, when the bank demanded possession of the house after
H failed to repay his loan
- H&W was married in 1972 decided to buy home & renovate
it
- Property in Q is a home in a semi-derelict state bought in
Hs sole name after H became entitled to a substantial sum
of money under a trust fund established by his grandmother

Land Law I | L6 Constructive Trust (Draft)

in Switzerland.
- H paid for the cost of the renovation work of the house

What W did?

Dispute
arose?

Issue

Held

- W helped with the renovation work by decorating the

bedrooms of the property and preparing other rooms for
decoration
- W also supervised and encouraged the builders who
were employed to work on the house.
- Unbeknown to W, H secured overdraft w/ bank by mortgaging
house
- Marital difficulties -> H left W and their children to be in
occupation of the house
- H failed to pay, bank sought possession of house.
- W claimed beneficial interest
- Whether W was entitled to a share of the ownership of the
house by way of CT, which would be binding on the bank as
an overriding interest under s.70(1)(g) of the Land
Registration Act 1925?
HL: held that W was NOT entitled to a share of the
equitable ownership of the house because NO trust had
arisen.

(1) Element 1: Common Intention

Lord Bridge

(1)
Express
Intention
(2)
Inferred
Intention
Lord Bridge
criticized 1st
instance
judge for
mixing up
the 2
categories
Implication

Drew a SHARP distinction between TWO circumstances in

which a common intention could be established:- By communication, agreement etc. evidence of express
intention
- Expressly articulated between the parties that they were
to share the ownership of the property; and
- NO express intention;
- Intention to share inferred from Conduct of the parties
1st instance judges failure to keep these TWO categories
distinct:
"I cannot help thinking that the judge in the instant case would
not have fallen into error if he had kept clearly in mind the
distinction between the effect of evidence on the one hand
which was capable of establishing an EXPRESS AGREEMENT ....
and evidence on the other hand of CONDUCT alone as a basis
for an inference of the necessary common intention."
Approach to CT by HL DIFFERENT criteria may apply,
depending upon whether a case involves an express OR
implied common intention.

(a) Express Common Intention CT

Establishing
express
common
intention CT
=
EVIDENCE
Express
intention

- CT can arise from express common intention between the

parties to SHARE the ownership of the property
- To establish: matter of EVIDENCE of what the parties SAID
to each other at the time of the purchase of the property and
thereafter:Express intention cannot be inferred from
- the nature of the parties expectations arising from their

Land Law I | L6 Constructive Trust (Draft)

cannot be
inferred
from:
Lord Bridge,
in Lloyds
Bank PLC v.
Rosset,

Very clear
evidence
required to
find ECI CT

relationship; or
- their conduct alone, e.g. if they are married or cohabitees.
What parties need to do to establish express common
intention CT:
- "The first and fundamental question which must always be
resolved is whether there has at any time *prior to the
acquisition, or exceptionally at any later date, been any
agreement, arrangement or understanding reached
between them that the property is to be SHARED beneficially.
- The finding of an agreement or arrangement to share in this
sense can only, I think, be based on evidence of EXPRESS
discussions between the partners, however imperfectly
remembered and however imprecise their terms may have
been."
- Here, on the evidence that was presented in the Rosset
case, Lord Bridge concluded that NO express COMMON
intention could be established in the case.
"entered into an agreement, made an arrangement, reached an
understanding or formed a common intention that the
beneficial interest in the property would be jointly owned,"
(expressions he felt were synonymous) VERY CLEAR
evidence was required.

(i) What Constitutes very clear evidence?

Lloyds
Bank PLC
v. Rosset
Eves v.
Eves

- W failed to satisfy the evidential burden required to establish an

EXPRESS common intention.
- Nevertheless, in that case, Lord Bridge referred to those cases
in which he considered the required burden of proof to have
been SATISFIED.
- Property in Q was house purchased in Ss name only
- J (19 years), moved in with S & changed her name by deed poll
- J & S intended to marry after Ss divorce and moved into a
house, which was purchased in Ss name only.
- Common intention - S told J that:
the house could NOT be put in their joint names because
she was NOT yet 21 this was actually NOT true;
he intended to put the house in their joint names in the
future.
- Detriment - J contributed NO money to the purchase price BUT
she:
did a great deal of work to improve the condition of the
house, which had been very dirty and in poor condition;
decorated and broke up concrete in the garden - Lord
Denning considered that "she did MORE than many
wives would do."
- 2 years later, S met another woman and decided to sell the
house.
YES Constructive Trust
CA
In these circumstances, J should be entitled to a SHARE of
Held
the equitable ownership by way of a constructive trust
- b/c S TOLD J that the only reason why the house had
NOT been put in their joint names was that J was too

Land Law I | L6 Constructive Trust (Draft)

Grant v.
Edwards

young.
- Mrs. G &Mr. E decided to live together after the birth of their
first child.
- A house was purchased in the name of Mr E and his brother.
- Common Intention - Mrs. G was told that if the house was held
in their joint names, it could prejudice her divorce
proceedings.
- The purchase price was met by two mortgages + the
balance by Mr. E.
- Detriment - Initially, Mrs. G:
made only a SMALL contribution to the household
expenses;
BUT after the birth of the second child, she returned to
work; and
made substantial contributions to joint household
expenses; which enabled Mr. E to use his earnings to pay
the mortgage instalments.
- After a fire at the property, the family moved into public
housing - they used the insurance monies to repair the property,
which was let, and the balance was paid into a joint savings
account.
- On the break-up of the relationship, Mrs. G claimed a share of
the house.
YES Constructive Trust
Held
Mrs. G was entitled to a HALF share in the house Mr. E
TOLD Mrs. G that he was purchasing the house they
shared in his name ONLY instead of in their joint names so
as NOT to prejudice her divorce proceedings.

(ii) Criticisms Above show artificiality of express

common intention
Artificiality
on
concept

- Superficially, the assurances given by S and Mr. E in the two

cases mentioned above could be taken as evidence of an
ULTIMATE intention that the property should be co-owned
WHEN the supposed obstacle was overcome.
- BUT, it may ALSO be argued by S and Mr. E that their
assurances were only lies they told their partners and that
there was NEVER any actual intention on their part that J and
Mrs. G were to enjoy a share of the property.
- his highlights the artificiality of viewing the imposition of a
constructive trust as the FULFILMENT of a common intention
already EXPRESSED between the parties.
- What seems to be more important is that the legal owner gave
the other person the impression that they intended the
ownership of the land to be shared AND, having created that
impression, they cannot claim the defence of their "real"
intentions

Note

- The concept of an "express intention" is rather close to the concept of

an express representation in cases of proprietary estoppel,
which arises where a landowner deliberately misleads a person as to
his/her entitlement in the land.
(a)
This overlap between the 2 concepts seems to have been
recognised by Lord Bridge as he made NO attempt in his

Differences
between

Land Law I | L6 Constructive Trust (Draft)

common
intention &
proprietary
estoppel

(b)

(c)

(a)

judgment in Lloyds Bank PLC v. Rosset to distinguish the 2

concepts clearly.
He suggested in his judgment that in both Eves v. Eves and
Grant v. Edwards, the court had "rightly held" that the female
partner was entitled to a "constructive trust OR proprietary
estoppel."
BUT, there are important conceptual distinctions between the
doctrines of constructive trusts and proprietary estoppel these
include the form of remedies available + the time at which the
relevant interest in the land is deemed to arise.
(d)
Therefore, although the SAME facts may support BOTH a
claim to a constructive trust + a proprietary estoppel, it is
important NOT to confuse the principles of the two principles.

(2) Element 2: Detrimental Reliance

Rule

CT only arises in the circumstances where it would be

inequitable or unconscionable for the legal owner to retain the
absolute ownership of the land, thereby failing to abide by the
expressed OR agreed intentions between him and the party
claiming an interest by way of a constructive trust.

(i) Direct/Non-Direct Financial Contributions

Lloyds
Bank PLC
v. Rosset
Lloyds
Bank PLC
v. Rosset,
Lord
Bridge
comment
on Eves v.
Eves &
Grant v.
Edwards

Affirmed
Eves v.
Eves

once a COMMON intention is established, the STANDARED

required of the conduct which will constitute detriment is
significantly LOWER than the standard required of conduct from
which the COMMON intention itself needs to be first inferred.
"The subsequent conduct of the female partners in each case
[once an express common intention is established], which the
court rightly held sufficient to give rise to a constructive trust
fell far short of such conduct as would by itself have supported
the claim, in the absence of an express representation by the
male partner, that she was to have such an intention
Once a finding [of an express common intention] is made, it will
only be necessary for the partner asserting a claim to a beneficial
interest against the partner entitled to the legal interest to show
that he or she ACTED to his or her detriment or significantly
ALTERED his or her position in reliance on the agreement in
order to give rise to a constructive trust."
- Conduct need NOT involve significant financial
contributions to constitute detriment
- once an express common intention was established, Js nonfinancial activities such as decoration and building work were
themselves sufficient.
Lord Denning opined: "She did NOT make any financial
contribution but she contributed in many other ways. She did
much work in the house and garden. She looked after him and
cared for the children. It is clear that her contribution was such
that if she had been a WIFE she would have had a good claim to
have a share in it on a divorceIn view of his CONDUCT, it would,
I think be most inequitable for him to deny her any share in the
house. The law will impute or impose a constructive trust by
which he was to hold it on trust for them BOTH."

(ii) Indirect Financial Contribution

Grant v.
Edwards

Mrs. G moved in with Mr. E in

circumstances where the court

Nourse LJ (CA) took the view

that these financial

Land Law I | L6 Constructive Trust (Draft)

HELD that there was an express

common intention that Mrs. G
would be entitled to a SHARE of
the house.Mr. E paid the
mortgage but Mrs. G made
financial contributions to:
- the housekeeping expenses;
and
- the bringing up of their
children

contributions could be
regarded as making indirect
financial contributions to
the mortgage instalments
BECAUSE they enabled Mr.
E to use the money from his
wages to pay the mortgage
instalments.

(iii) ANY act relating to the joint lives of the parties

BrowneWilkinson
V-C

A more liberal and expansive view: once the common

intention to share between the parties is established, ANY
conduct of the claimant should be taken into account when
determining whether there was detriment, NOT merely conduct
referable to the property.
- "Once it has been shown that there was a common intention
that the claimant should have an interest in the house, ANY act
done by her to her detriment relating to the JOINT lives of the
parties is, in my judgment, sufficient detriment to qualify.
The acts done do NOT have to be referable to the house
- In many cases of the present sort, it is impossible to say
whether or not the claimant would have done the acts relied on
as a detriment even if she thought she had NO interest in the
house.
- Setting up house together, having a baby, making payments to
general housekeeping expenses (not strictly necessary to
enable the mortgage to be paid) may all be REFERABLE to the
mutual love and affection of the parties and NOT
specifically referable to the claimants belief that she has an
interest in the home."

(vi) Conduct which is de-minimis

Rule

Lloyds
Bank PLC
v. Rosset

Although all types of conduct of the claimant should be taken into

account in assessing detriment, conduct which is only "de
minimis", that is, trifling, will NOT amount to a "substantial
change of position."
Lord Bridge considered that even if there had been an express
COMMON intention, Mrs. Rossets contributions to the work of
renovating the house would have been de minimis and, therefore
insufficient to support the claim of a constructive trust.

(2(a)) Quantification
Rule

Eves v.
Eves

In principle, if there is EXPRESS common intention between the

parties which gives rise to a constructive trust, the claimant
should be entitled to a share of the equitable ownership
equivalent to what was mutually agreed between the parties.
- Ss assurances seemed to indicate that he would ultimately
place the house in the JOINT names of S and J
- Lord Denning seemed to prefer to for the court to determine in
its discretion the appropriate share: "But what should be the
shares? I think one half would be too much. I suggest it should
be one quarter of the equity.
- Brightman LJ: expressed some doubts over this approach and
seemed to prefer the view that J should be entitled to a HALF

Land Law I | L6 Constructive Trust (Draft)

share.

5. Inferred Common Intention Constructive

Trust
Basic Rule

Rule
Explanatio
n
Family /
Relationsh
ips

Pettitt v.
Pettitt
(1970)

Court will NOT infer common intention merely b/c parties are
involved in a relationship/have family; ONLY EXCEPTIONAL
conduct by a party will give rise to an inference of a common
intention.
Absence of an express common intention between the parties
does NOT mean that there is NO constructive trust.
- Courts have always been reluctant to INFER a common
intention MERELY from the facts that the parties are involved in
a relationship, e.g. through marriage or co-habitation, which
inevitably involves an assumption on the part of either party
that any land occupied by them should be jointly owned.
- The courts consider ownership of property as a much MORE
important entitlement than the mere right of occupation.
- Therefore, the courts expect the kind of conduct relied on by the
claimant of an equitable interest to go far BEYOND the ordinary
course of human relationships
Lord Diplock stressed that a common intention of joint
ownership is NOT to be inferred from the mere fact that the
parties have done what spouses or partners would ordinarily
do:
"It is common enough nowadays for husbands and wives to
decorate and to make improvements in the family home
themselves, with NO other intention than to indulge in what
is now a popular hobby, and to make the home
pleasanter for their common use and enjoyment.
If the husband likes to occupy his leisure by laying a new
lawn in the garden or building a fitted wardrobe in the
bedroom while the wife does the shopping, cooks the
family dinner or bathes the children, I, for my part, find it
quite impossible to impute to them as reasonable
husband and wife any COMMON intention that these
domestic activities or any of them are to have any effect
upon the existing proprietary rights in the family on
which they are undertaken."

a. Exception Conduct that may constitute Common

Intention
(i) Substantial Financial Contribution - YES
Lloyds
Bank v.
Rosset
(HL)

ONLY SUBSTANTIAL contributions to the purchase price of

the property could be regarded as sufficient conduct to infer a
common intention.
- "In sharp contrast [with the case where there is an express
common intention] is the very DIFFERENT one where there is
NO evidence to support a finding of an agreement or
arrangement to share, however reasonable it might have been
for the parties to reach such an arrangement if they had applied
their minds to the question, and where the court must rely
entirely on the CONDUCT of the parties BOTH as the basis
from which to infer a common intention to share the
property beneficially and as the conduct relied on to give rise

Land Law I | L6 Constructive Trust (Draft)

to a constructive trust.
- In this situation, DIRECT CONTRIBUTIONS to the purchase price
by the partner who is NOT the legal owner, whether initially or
by payment of the mortgage instalments, will readily justify
the INFERENCE necessary to the creation of a constructive trust.
BUT, as I read the authorities, it is at least extremely doubtful
whether anything LESS will do.

(ii) Non-Financial Contribution NO

Rule

Therefore, it seems that non-financial contributions to a

partnership, e.g.

providing child care; and

looking after the house

will by themselves NOT be sufficient to give rise to a
constructive trust.

Rule

Contribution to housekeeping expenses which enabled the

mortgage to be paid would, as an indirect contribution to the
purchase price, be SUFFICIENT to justify drawing an inference of a
common intention from the parties CONDUCT.

Lloyds v
Rosset

BUT, the House of Lords HELD that

Mrs. Rossets conduct of:
- decorating the house; and
- supervising the work of the
renovating builders
was NOT capable of justifying an
inference of a common intention to
share ownership of property.

(iii) Housekeeping Expenses YES

(iv) Contributions which are de-minimis NO

Lord Bridge commented:
the monetary value
of Mrs. Rossets work,
expressed as a
contribution to a
property acquired at a
cost exceeding
GBP70,000, must have
been so trifling as to be
almost de minimis.

(v) No express common intention YES

Rule

The court does NOT seem to have any difficulty in inferring a

common intention from the parties conduct even where there is
evidence to show that the parties involved have, in fact, NOT
formed any express intention as regards the share of ownership of
the property.

Land Law I | L6 Constructive Trust (Draft)

Midland
Bank PLC
v. Cooke

- Evidence presented at trial by a husband and his wife

demonstrated that at the time that the matrimonial home was
purchased in the husbands name, there had been NO
discussions as to how the property should be owned
beneficially.
- Counsel for the Bank argued that since the parties had testified
on oath that they had made NO agreement on how the property
should be owned beneficially when the property was purchased,
there was NO scope for equity to create an agreement
between them
- Waite LJ dismissed this argument as counter to the very
system of equity:
- It would be anomalous to create a range of home-buyers
who were beyond the pale of equitys assistance in
formulating a fair presumed basis for the sharing of beneficial
title, simply because they had been honest enough to admit
that they NEVER gave ownership a thought or reached any
agreement about it.

b. Differences Between an "Inferred Common

Intention" Constructive Trust and a Resulting Trust
Lloyds
NO express common intention
=
NO
Bank v.
constructive trust
Rosset
+ NO direct financial contribution
Differences
between RT
& CT?

Although there are prima facie similarities between the

principles of resulting trust and constructive trust, e.g. BOTH
principles imply a trust over land as a result of financial
contributions, the two concepts are in fact quite distinct.

Main
difference
lies in the
quantificat
ion of the
SIZE of the
equitable
share of
the
property to
be acquired

Resulting Trust
The equitable share is
determined mathematically as
being proportional to the
amount of contribution to the
purchase price.

Constructive Trust
Court gives effect to the
inferred common intention
from the conduct of the parties
therefore, the SIZE of the
share arising under an
inferred common intention
constructive trust may in some
circumstances be LARGER
than the relative
proportion of the price

Land Law I | L6 Constructive Trust (Draft)

by the
claimant.

actually contributed by the

claimant of an equitable
interest.

Midland
Bank PLC v.
Cooke

A contribution to the purchase

price would have entitled a
wife to a 6.74% share ONLY in
the equitable ownership by
way of a resulting trust;

BUT it was HELD by the court

that the wife was entitled to a
share by way of a
constructive trust.

c. Relevance of Non-financial Factors in

establishing an "Inferred Common Intention"
Constructive Trust where SOME financial
contribution has ALSO been made
Note

Rule
requires
a Trigger

Midland
Bank v.
Cooke

- Judgment of Lloyds Bank v. Rosset seems to suggest that

non-financial contributions can never be the conduct from
which to infer a common intention to share the ownership of
land.
- BUT this does NOT mean that non-financial contributions are
totally irrelevant in determining WHAT precisely the parties are
believed to have intended especially where an intention to
SHARE the ownership can already be inferred to some extent
from financial contributions that have been made by the
claimant.
- Conduct of making a financial contribution is STILL
necessary to act as a "trigger" for the court to INFER a common
intention to share the beneficial ownership.
- ONCE a common intention has been established, the court will
then be able to take into account of ALL facts, including the
nature of the relationship of the parties, in establishing the
proportions in which the parties should share the beneficial
ownership of the property.
Facts
- Mrs. Cooke argued that she was entitled to more
than a 6.74% share of the equitable ownership by
way of a resulting trust.
- She claimed entitlement to a HALF share by way of
a constructive trust arising from the common
intention that she and her husband were to SHARE
ownership of the property equally.
- The evidence clearly failed to establish that there
was any EXPRESS common intention between
them whatsoever to share the ownership.
- According to the principles of Lloyds Bank v.
Rosset, Mrs. Cooke would have to establish an
inferred common intention that she was to be
entitled to a HALF share of the beneficial ownership
of the house.
Held
Court of Appeal HELD that Mrs. Cookes financial
contribution was SUFFICIENT conduct from which to
INFER the necessary common intention between her
and her husband to share ownership of the property.

Land Law I | L6 Constructive Trust (Draft)

Quantificat
ion
Waite LJ
explained

Relevant
Facts

Waite LJ
concluded

The court went on to conclude that in assessing the

extent of the interest Mrs. Cooke had been intended
by the parties to enjoy, ALL the circumstances of
the case should be taken into account.
- "The general principle to be derived from Gissing
v. Gissing and Grant v. Edwards can in my
judgment be summarised in this way:
- When the court is proceeding in cases like the
present where the partner without legal title has
successfully asserted the equitable interest
through DIRECT contribution, to determine (in
the absence of express evidence of intention) what
proportions the parties must be assumed to have
intended for their beneficial ownership, the duty of
the judge is to undertake a survey of the WHOLE
course of dealing between the parties relevant
to their ownership and occupation of the property
and their sharing its burdens and advantages.
- That scrutiny will NOT confine itself to a limited
range of acts of DIRECT contribution of the sort that
are needed to found a beneficial interest in the first
place.
- It will also take into consideration ALL conduct
which throws light on the question what shares
were intended.
- Only if that search proves inconclusive does the
court fall back on the maxim that equality is
equity."
having examined ALL the evidence of the parties'
relationship, the court concluded that their intention
should be presumed to have been an intention to
share the property equally. Waite LJ pointed
especially to the fact that Mrs. Cooke had:

looked after their children;

maintained the property;

contributed to household bills from her own

salary;

consented to a second mortgage of the house;

and

guaranteed her husband's business debts.

- "One could hardly have a clearer example of a
couple who had agreed to share everything
equally: the profits of his business while it
prospered, and the risks of indebtedness suffered
through its failure; the upbringing of their children;
the rewards of her own career as a teacher; and
most relevantly, a home into which he put his
savings and to which she was to give over the years
the benefit of the maintenance and improvement
contribution.
- When to ALL this there is added the fact (still an
important one) that this was a couple who had
chosen to introduce into their relationship the

Land Law I | L6 Constructive Trust (Draft)

additional commitments which marriage

involves, the conclusion becomes inescapable that
their presumed intention was to share the
beneficial interest in the property in equal
shares."

6. Criticisms of the Common Intention CT

Lloyds Bank
PLC v.
Rosset
(1991

House of Lords clearly stated that a constructive trust will only

arise if there is either an EXPRESS or INFERRED common
intention that the equitable ownership of land was to be shared

a. The Way to Ascertain the existence of a

Common Intention is ARTIFICIAL
Establishing
an Express
Common
Intention

Inferring a
Common
Intention
from the
Conduct of
the Parties

- In the same judgment, Lord Bridge described the cases of

Eves v. Eves and Grant v. Edwards as "outstanding" examples
of parties being found with an EXPRESS common intention.
- BUT the reality of these cases may be that there was NO
common intention at all regarding the SHARING of the
ownership of the property.
- It may also be argued that in each case, the male partner had
NO actual intention of SHARING OWNERSHIP of the property
with his female partner he MERELY gave a convenient excuse
to his female partner explaining why it would NOT be possible
to put the property in JOINT names.
- Where there is NO express common intention, the process of
inferring an intention is even LESS realistic.
- The court seems to have been engaged in a process of
creative assessment of the parties' desires, especially in
cases where there is clear evidence to show that the parties
had formulated NO express intentions whatsoever
regarding the sharing of ownership of the property.
- Midland Bank PLC v. Cooke: the suggestion that the court is
simply fulfilling what the parties would have wanted
therefore seems false.

b. The role of a financial contribution in

establishing a constructive trust where there is
NO express common intention
Lloyds Bank
v. Rosset

Requiremen
t of
triggering
event - $

The practical effect of the decision in Lloyds Bank PCL v.

Rosset is that a person who has made NO (or de minimis)
financial contribution at all towards the purchase price or the
upkeep of land will NOT be able to claim any entitlement to a
share of the equitable ownership unless he/she can establish an
EXPRESS common intention on the basis of the evidence
If Jill moves in with Jack, who is the sole registered owner of a
house, does NOT work but ONLY:
looks after the house and garden; and
does a substantial amount of renovation work with
materials provided by Jack; and
Jack pays for the house and the expenditure of the family
over many years,
then, Jill will NOT be able to establish a constructive trust in

Land Law I | L6 Constructive Trust (Draft)

her favour.
In this situation, even though everything about their
relationship may suggest an intention to SHARE the equitable
ownership of the property, Jill's activities, which are purely nonfinancial, will NOT be sufficient because:
Jack and Jill have never articulated any intention to
SHARE ownership of the property; and
Jill has NOT made any financial contribution.
However, so long as Jill could prove that she has made financial
contribution that the court will NOT consider as de minimis, the
court will be prepared:

to infer a COMMON intention for her to share ownership

of the property with Jack on the basis of her CONDUCT (of
financial contribution); and
to examine ALL the details of the parties' relationship

in order to ascertain the true extent of the share of Jills

equitable ownership.
In other words, the triggering event in this situation is the
conduct of making a financial contribution.

c. Points to Note
Inconsisten
cies of
court

Nonfinancial
Contributio
ns

Proprietary
Estoppel

The inconsistency in the courts approach between the

situation where there is NO financial contribution such as
Lloyds Bank PLC v. Rosset and where there is a relatively
small financial contribution such as Midland Bank PLC v.
Cooke calls into question the logic and fairness of the
principles of constructive trust which have so far been
developed.
In a modern age when the relative contributions of parties to
relationships are already NOT judged in purely economic and
monetary terms and the society seems to be increasingly
concerned instead about the value of non-financial
contributions made by women to formal or informal unions,
such as
doing the housework; and
looking after the children born of the unions,
It has been argued that this kind of non-financial
contributions should be placed on the SAME level of
importance as financial contributions as sufficient conduct from
which the court can infer a common intention between the
parties to establish a constructive trust.
It should be noted, however, that non-financial contributions
may in some circumstances be sufficient to establish an
entitlement by way of the principles of proprietary estoppel,
which we are going to study in the next lecture.

Land Law I | L6 Constructive Trust (Draft)

7. Other Approaches to CT
Other
jurisdictions
& their
problems

- While English law has adopted a relatively restrictive

approach to constructive trusts of land, similar difficulties of
determining WHEN an equitable interest should arise
INFORMALLY have also been tackled by OTHER common law
jurisdictions.
- On the whole, these jurisdictions seem to have adopted MORE
flexible approaches than the English courts.
- BUT, essentially these courts have had to struggle with more
or less the SAME problems, which are:
(a)
the relevance of the parties' intentions;
(b)
the extent to which non-financial contributions
should give rise to an interest in land; and
(c)
the extent to which any equitable interest in the land
may arise
by right; or
through an exercise of the court's discretion.

a. Canada
Rule

Sorochan v.
Sorochan
(1986) 29
DLR (4th) 1
Peter v.
Beblow
(1993) 101

- The Canadian courts have moved furthest away from the

traditional intention based constructive trust and have
developed the concept of the constructive trust as a means of
effecting restitution by reversing an unjust enrichment.
- To establish a constructive trust, a person is required to
demonstrate that the legal owner of the land had been
enriched in some way, which meant that the claimant had
experienced a corresponding deprivation.
HELD that there was an
the man was HELD to have
enrichment and deprivation
enjoyed the benefit of the
where a man and woman lived
woman's years of labour in
together for 42 years jointly
the farm and home.
working a farm which was owned
at law by the man.
a man was HELD to have been
Once enrichment is
enriched when the woman with
established, the claimant will
whom he lived had acted as
be entitled to a

Land Law I | L6 Constructive Trust (Draft)

DLR (4th)
621

- a house-keeper,
- a home-maker; and
- a step-mother.

Rule

This means that for a claimant to succeed, he/she must be able

to establish that there is NO reason why the claimant would have
conferred the enrichment without a reasonable expectation of
retaining the benefit of it.
(1) a MORE positive attitude is adopted towards non-financial
contributions to family life, e.g. house-keeping and childrearing, which can constitute an enrichment calling for
restitution but would NOT support the finding of an inferred
common intention under the principles of Lloyds Bank PLC
v. Rosset;
(2) Once it is established that there is an enrichment which calls
for restitution, the award of the appropriate REMEDY is a
matter for the courts discretion the court may
award a constructive trust, e.g. in Sorochan v. Sorochan
where it was felt that a 1/3 share of the farm was
appropriate; or
a LESSER remedy such as monetary compensation;
(3) if a beneficial interest under a constructive trust is awarded,
it does NOT necessarily affect other third parties rights in
the land, such as a mortgagees, since it does NOT arise
UNTIL granted by the court.

c.f. w/
English
Courts

constructive trust in the

absence of any "juristic
reason for the enrichment".

b. Australia
Rule

Muschinski
v. Dodds
(1985) 160
CLR 583
Baumgartn
er v.
Baumgartn
er (1987)
164 CLR
137
Court can
decide

- The Australian courts initially adopted the common intention

constructive trust BUT now justify the imposition of
constructive trusts on the ground of "unconscionability".
- The main advantage of this approach over the English
approach is that it abandons the need to find any intention,
thus reducing the degree of artificiality in justifying the
imposition of a trust.
Deane J.: "remedial institution which equity imposes
regardless of actual or presumed intention to preclude the
retention or assertion of beneficial ownership to property to the
extent that such retention or assertion would be CONTRARY TO
equitable principle."
the majority of the High Court HELD that a trust should be
imposed in favour of a woman who had lived with a man even
where there was NO common intention because the POOLING
of their financial resources meant that it would be
unconscionable for him to claim that the house was his sole
property.
As the constructive trust in this context is imposed by the
court rather than arising from the parties intentions, it is OPEN
to the court to determine whether it should take effect:
retrospectively; or
only from the date of judgment.

c. New Zealand
Rule

The New Zealand courts also began by adopting the common

intention approach BUT have more recently justified the
imposition of constructive trusts on the basis of the fulfilment

Land Law I | L6 Constructive Trust (Draft)

Gillies v.
Keough
(1991) 2
NZLR 327

Points to
Note

of the parties' "reasonable expectations".

Cooke P regarded supposed common intentions as fictitious
and HELD instead that the parties reasonable expectations
should be construed from their conduct.
Relevant factors in determining a reasonable expectation might
include:

the length of the parties relationship; and

the value of their contributions, whether financial or nonfinancial

(1)
The court is, therefore, involved in the process of
objectively deciding whether conduct like that of the
parties should give rise to a reasonable expectation of
a share of the ownership of the land.
(2)
If the legal owner has made it clear that the non-owner
would NOT obtain an interest in the land, then the court
will NOT find that the non-owners conduct was based on a
reasonable expectation of any interest in the land.
(3)
For this reason, the Court of Appeal HELD that a man, who
had moved in with a woman (who subsequently purchased
a house in her SOLE name and indicated throughout the
relationship that she regarded it as hers), did NOT have a
reasonable expectation to gain a share of the ownership
even though he contributed to household expenses and
improvements.

d. Sum up
Note

Although the courts in England, Canada, Australia and New

Zealand have reached quite DIFFERENT solutions to the problem
of the creation of INFORMAL trust interests in land, it is worth
noting that these courts seem to have had to tackle the SAME
difficulties.

(i) Wide Discretion of the courts?

Note

- None of these courts seems to have been attracted by the idea

of a wide discretion of the court to impose a trust on the basis
of simple justice.
- Instead, they have all sought to establish criteria by means of
which to distinguish between the situations where a
constructive trust is justified from those where it is NOT, by
using such terminology as a "common intention", an
"enrichment" or an "expectation".

(ii) Terminology Used

Note

- In applying these criteria, the parties OWN way of thinking

seems irrelevant the courts in Canada, Australia and New
Zealand seem to have tried to avoid using artificial language
such as a real or presumed "common intention".
- Instead, these courts have used terminology such as unjust
enrichment and reasonable expectations to indicate that
the courts are objectively assessing whether the ownership
of the land should be SHARED in view of the circumstances of
the case, rather than "pretending" to investigate, like the
English courts, whether the parties have subjectively wanted

Land Law I | L6 Constructive Trust (Draft)

Gillies v.
Keogh,
Cooke P

to share equitable ownership of the property.

"Normally it makes NO practical difference in the results whether
one talks of constructive trust, unjust enrichment, imputed
common intention or estoppel. In deciding whether any of these
are established it is necessary to take into account the same
factors."

(iii) Nature of Remedy

Main
Difference

MAIN difference between the English and the other common law
countries' approaches is NOT so much the circumstances in
which a constructive trust can arise as the NATURE of the
remedy.

(1) Institutional vs Remedial

English
Approach

Other
jurisdiction

- The English concept is that of an institutional constructive

trust, in the sense that the equitable interest arises in favour
of the beneficiaries as of right from the facts.
- In other words, the claimant's beneficial entitlement arises
at the very moment that there was a COMMON intention the court is merely acknowledging the existence of an
equitable interest and fulfilling the common intention of the
parties, NOT awarding it as a remedy.
- As a result of this, the equitable interest MAY affect the rights
of third parties acquired AFTER the creation of the
constructive trust but BEFORE the date of the court's
judgement confirming its existence.
Courts in other common law countries seem to have adopted a
MORE remedial approach in that the AWARD of a share of the
equitable ownership is ONLY one of a WIDE range of potential
remedies available from the court.

(2) Protection of 3rd Parties

Note

- The courts of these other common law countries also have the
discretion to determine whether a beneficial interest, if
awarded, should take precedence over third parties' rights in
the land.
- To this extent, these approaches to the constructive trust seem
to be a combination of the English principles of constructive
trusts and proprietary estoppel.

e. Where do the English courts go from here?

Note

- Although at present, the doctrines of constructive trusts and

proprietary estoppel are theoretically distinct, and, therefore,
different requirements MUST be met for EACH of them, there is
increasing evidence of an awareness by the courts of a
substantial overlap BOTH in theory and practice.
- It is possible that sometime in the future, the whole of English
law in this area will develop in a manner MORE consistent with
that of the courts in Canada, Australia and New Zealand.

Land Law I | L6 Constructive Trust (Draft)