Soton Equity and Trusts - alastairhudson.com

Topic 8. TRUSTS OF HOMES
General Reading: Hudson, Ch.15 (&13); Martin Ch.11;
Pettit 190-215
The area of trusts of land, specifically in relation to family homes, is particularly vexed. The
following lectures will consider the manner in which Equity allocates rights in the home and
will also consider the theoretical bases on which that allocation takes place. Any
categorisation of the possible claims in this area will be controversial - the lay-out is therefore
one possible way of categorising this subject.
A. THE POSITION UNDER ENGLISH LAW
Trusts of Land and Appointment of Trustees Act 1996
s.37 Matrimonial Property and Proceedings Act 1970
1. Express trust of land
Reading: Hudson, section 15.2
Goodman v. Gallant [1986] FLR 106
2. The decision in Jones v Kernott
Reading: Hudson, section 15.1.4
(a)
The prologue in Stack v Dowden
**Stack v Dowden [2007] UKHL 17, [2007] 2 WLR 831
Baroness Hale held, para [60]:
[60] ‘There is no need for me to rehearse all the developments in the case law
since Pettitt v Pettitt and Gissing v Gissing [all of that is done in these Lecture Materials below],
discussed over more than 70 pages following the quoted passage, by Chadwick LJ
in Oxley v Hiscock, and most importantly by my noble and learned friend, Lord
Walker of Gestingthorpe in his opinion, which make good that proposition. The law
has indeed moved on in response to changing social and economic conditions. The
search is 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.’
In expressing the idea that the court is concerned with identifying the
parties’ common intention, Baroness Hale held the following, para [61]:
[61] ‘Oxley v Hiscock [2004] EWCA Civ 546, [2005] Fam 211 was, of course, a
different case from this. The property had been conveyed into the sole name of one
of the cohabitants [whereas in Stack v Dowden the property had been conveyed into
joint names]. The Claimant had first to surmount the hurdle of showing that she had
any beneficial interest at all, before showing exactly what that interest was. The first
could readily be inferred from the fact that each party had made some kind of
financial contribution towards the purchase. As to the second, Chadwick LJ said this,
at para 69:
". . . in many such cases, the answer will be provided by evidence of what
they said and did at the time of the acquisition. But, in a case where there
is no evidence of any discussion between them as to the amount of the
share which each was to have - and even in a case where the evidence is
that there was no discussion on that point - the question still requires an
answer. It must now be accepted that (at least in this court and below) the
answer is that each is entitled to that share which the court considers fair
having regard to the whole course of dealing between them in relation to
the property. And in that context, the whole course of dealing between them
in relation to the property includes the arrangements which they make from
time to time in order to meet the outgoings (for example, mortgage
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