To assess the development of the law relating to implied trusts and the family home I shall examine the elements found in the question’s Hudson quote in relation to the key cases that have tried to move the law towards a greater sense of ‘fairness’ and to avoid unconscionability.
When a person holds both the legal and equitable interest in a piece of land they are the legal owner. When a trust is created the legal ownership is transferred from the owner (or settlor) to a trustee, with accompanying obligations to discharge the interests of the settlor at the same time the equitable interest is transferred to a beneficiary, giving them certain rights in the property.
“Where there has been an express trust declared over land, the terms of
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Although let us note that in both Stack v Dowden and Jones v Kermott both the women were the main financial contributor to the purchase price, a reflection of modern times on one hand. However the fact that the money is the only element that is given real value in these cases suggests that in some ways little has changed ideologically as in both the courts fail to impute intention from the actions or agreements of the parties that they wanted to share their apportions in the property.
Gissing v Gissing expanded upon resulting trusts by going beyond the limitations of rights obtained via the same to include the broader common intentions of the parties giving rise to a common intention resulting trust.
In Alastair Hudson’s Equity & Trusts he quotes Lord Diplock suggesting that people were more likely to be concerned about the “economic realities” they were dealing with than with the “technicalities of English law” meaning they would not be overly formal in their interaction with their homes. Common intention could be found through discussion between the parties, from evidence or inferred from conduct.
“The ultimate aim is to reach a ‘fair’
Lord Wilberforce, the judges who presided over the Anns v. Merton case used a two-step test in determining the scope of proximity between the homeowner and the municipality. The first part of the test determined whether the relationship between the two parties was sufficient enough so that failure to exercise a duty of care by one of the parties would result in damages sustained by the other. The second step, pursuant upon the first step looks at any aspects that would limit the obligations placed on the party to exercise a duty of care. This test and the Anns v. Merton case set a strong precedent that was used in the Kamloops v. Nielson case, the first of its kind in Canada.
In the case of Yerkey v Jones (Yerkey v Jones), the judgment of Dixon J established a principle that operates in certain circumstances where a married woman provides a guarantee for her husband. While the principle has come under a significant amount of criticism in more recent times, it was reapplied in the case of Garcia v National Australia Bank .
The importance of social context in Land Law and the reforms which have occurred as a result cannot be ignored or their significance understated. In particular is the impact of the shift in the twentieth century to ‘emergence of a property owning, particularly a real-property-mortgaged-to-a-building-society-owning-democracy’. Such growth could hardly have been anticipated when the LPA 1925 was drafted and subsequently became statute. As a consequence of this growth the doctrine of the resulting trust and to a greater extent, the constructive trust became a robust mechanism by which non legal owners could establish beneficial interests in the home. Swadling comments on the ‘complete change in attitude’ between the emphasis on security of ownership of the home in Boland and the free marketability of land which we see in Flegg. He states ‘one wonders what has happened to the demands of social justice which justified their Lordships decision in 1980 (in Boland) over such a brief passage of time’. Did the House of Lords fail to resolve the very practical issue with which they were presented that had evolved over the passage of social change since the drafting of the 1925 legislation?
Tooher, Joycey, ‘Jubilant Jamie and the Elephant Egg: Acquisition of Title by Finding’ (1998) 6 Australian Property Law Journal 117
Andrews N, ‘Does a third party beneficiary have a right in English law?’ (1988) 8 Legal Studies 14
The Incorporated Council of Law Reporting for England & Wales. - Counsel [24] See footnote 22 – but page 61 [25] GEOFFREY, Marshall, Constitutional Theory, Clarendon Law Series, Oxford 1971 Chapter1 – the Law and the constitution, part 3. Dicey’s doctrine and its critics. [26] REGINA v HER MAJESTY'S TREASURY, Ex parte SMEDLEY, [COURT OF APPEAL], [1985] Q B 657, 19 December 1984, (c)2001 The Incorporated Council of Law Reporting for England & Wales [27] MITCHELL, JDB, Constitutional Law, 2nd edition, Edinburgh, W Green & SON LTD, 1968, Convention, page 31 [28] See footnote 22 but page 64
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Despite it’s longevity, consideration is not without criticism. Lord Goff observed in White v Jones that: ‘our law of contract is widely seen as deficient in the sense that it is perceived to be hampered by the presence of an unnecessary doctrine of consideration’. Abolition has been urged. Since the publication of the Law Revision Committee’s report in 1937, la...
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Accessed 16/03/2012. http://www.law201.co.uk/95.pdfaccessed on 16/03/2012. http://www.oup.com/uk/orc/bin/9780199219742/01student/mindmaps/loveland_mindmaps_royal_prerogative.pdfaccessed on 17/03/2012. http://www.justice.gov.uk/royal-prerogative.pdf accessed on 17/03/2012. http://www.justice.gov.uk/royal-prerogative.pdf accessed on 18/03/2012.
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