Regular updates on relevant case law and legislation - October 2008

CHAPTER 9 IMPLIED CO-OWNERSHIP IN LAND – RESULTING AND CONSTRUCTIVE TRUSTS

Box B9 The use of the constructive trust when both parties are on the legal title (page 189)

In Laskar v Laskar [2008] EWCA Civ 347; [2008] 21 EG 140, a mother and daughter had purchased a house together as an investment opportunity but with no declaration of the beneficial interest. It was held that the principles in Stack v Dowden (2007) did not apply to property purchased as an investment, as here, where the property had been bought to let out. Even if Stack v Dowden (2007) did apply, the presumption of equality was rebutted on the facts. The resulting trust analysis was applied instead of the principles in Stack v Dowden (2007). On a different point, the presumption of advancement (Box A2b page 166) could also have applied between the mother and daughter. This was a presumption that was easy to rebut, as here, particularly as the daughter was over 18 and managed her own affairs at the time of the purchase.

Reform (page 198)

A project on Marital Property Agreements will be undertaken by the Law Commission in late 2009 with a report and draft Bill expected in late 2012. The project will look at the status and enforceability of agreements between spouses or civil partners concerning their property and finances made either before (commonly referred to as pre-nuptial or pre-nup agreements) or after their marriage or civil partnership. Such agreements are not currently enforceable in divorce or dissolution of a civil partnership although a court may take them into consideration. Note that the project will not look at cohabitation agreements and so will be of no help at all to anybody who finds themselves in the situations described in Chapter 9.

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