Implied trusts/ proprietary estoppel.
(A) Can ‘S’ claim any rights in the house by way of implied trust (B) how the size of any share will be calculated (C) whether ‘S’ can claim any right to stay or any other remedy on the basis of proprietary estoppel.
For S to claim any rights in the house by way of implied trust, or trust which is founded in an unexpressed but presumable intention there is no need to show a pre-existing proprietary right and co-ownership is implied. An implied trust arises by the operation of the law and in this case would be imposed on A which would require her to hold it in part for the benefit of S.
The circumstances of S were considered as a resulting trust in the case of Westdeutsche Landesbank Girozentrale v Islington London Borough Council whereby Lord Browne-Wilkinson stated that “where A makes a voluntary payment to B or pays for the purchase of the property which is vested either in B alone” there is an assumption that the money S paid was not intended to be a gift therefore the property is held on trust for S or S and A hold the house in shares “proportionate to their contributions”. Although the house was bought by A, S made a direct financial contribution thus a trust is likely to be found to exist. As there is absence in the evidence that a gift or loan was intended a resulting trust will arise in S’s favour to the extent of S’s contribution in 2002 to the repayment of the mortgage.
A non-legal co-owner may have an equitable interest resulting in a constructive trust even where a direct financial contribution has not been made. If it can be inferred that there was a common intention by S and A that S would acquire an interest by virtue of his contribution a constructive trust may be held to exist. Following the two-limb test to establish a constructive trust an agreement must first be found to exist which will include “express discussions between the partners” . In this case an oral agreement may be found to exist by A having stated “we share everything together” even though it was made orally.
The second limb requires proof that the non-legal owner of the house acted to his detriment in reliance on the agreement. S can show he acted to his detriment and significantly altered his position in reliance on the agreement by elaborating to the court on the contributions made from 2000- 2002 and the extensive work he did on the garden and redecoration of the house in 2004, but more significantly paying for half of the roof replacement and paying off the mortgage directly in 2002.
As S has only contributed a part of the purchase price, the resulting trust in his favour will be the equivalent proportion of equitable interest to the money he has paid towards the mortgage only.
If a constructive trust is found to exist then the courts will adopt a ‘broad brush approach’ which will not only consider the contribution made to the mortgage payment, but the 50% paid for the replacement of the roof and the refurbishment of the garden and house as this contributed to the maintenance and essential upkeep on the house. This is because S will have “acted to his detriment” in reliance on the belief that he held a beneficial interest.
Proprietary estoppel is demonstrated by the courts when they “protect the expectations of the non-owner and may award the non-owner as much as a full ownership interest in the land if justice demands” . It is an equitable doctrine which would allow S to assert rights despite the absence of formalities. The essential elements of proprietary estoppel exist where the legal owner of the property has encouraged a third party to believe that he has or will in the future obtain rights in respect of the property and the third party has acted in reliance of this assurance to his detriment. The estoppel is different from a constructive trust as a mere assurance will satiate the first element and a common agreement is unnecessary, however often a set of facts may be held to be both a proprietary estoppel and constructive trust as many elements of both remedies overlap.
Pascoe v Turner would support S’s claim of assurance as A, the legal owner, made a representation that they “share everything together” and that he would become entitled to an interest in the house. In order to prove the reliance S placed on A’s representation, it will suffice to show that in direct response to A’s statement, S paid for half of the roof replacement and paid off the mortgage. Lastly, S must prove a detriment or change of position on his behalf that “show[s] that he has acted to his detriment or significantly altered his position in reliance on the agreement” S not only spent the last of his capital on improvements to the house and garden he pledged to change his ways and acted on his pledge. Following the judgment in Pascoe improvement of the legal owner’s house constitutes a detriment especially considering S felt the house was to be A and S’s to enjoy. Re Basham also emphasises that a detriment arises after the “expenditure of A’s money on B’s property…”
Once the essential elements have been proven it is likely that S’s remedial response may be a right of occupancy including a right to occupy rent-free for life, but more likely financial compensation will be granted. Following the judgment in Dodsworth v Dodsworth it would be assumed that S would be repaid his contributions to the mortgage, roof, upkeep and improvements. Otherwise, S may be entitled to an ownership interest in the property in the form of a share of the beneficial ownership of the house held on trust by A.
Ultimately, “the most essential requirement is that there must be proportionality between the expectation and the detriment” and “the task of the court is to do justice”.
PEARCE, R. AND STEVENS, J. (2002) The Law of Trusts and Equitable Obligations 3rd Edition London: LexisNexis Butterworths Tolley.
PENNER, J.E. (2001) Mozley & Whiteley’s Law Dictionary 12th Edition London: Butterworths.
MACKENZIE, J.A. AND PHILLIPS, M. (2002) Textbook on Land Law 9th Edition Oxford: Oxford University Press.
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