Implied trusts of the home
Implied trusts of the home

The following Property guidance note provides comprehensive and up to date legal information covering:

  • Implied trusts of the home
  • Joint tenancy and the effect of severance
  • Sole ownership
  • Resulting trust
  • Constructive trust
  • Quantification of the interest

Cohabitants and other co-owners or co-occupiers of property, often fail to specify the extent of their respective beneficial interests in the shared home. This can create significant uncertainty if, eg the relationship subsequently breaks down or a trustee in bankruptcy or creditor of one of the parties tries to realise that person’s purported share in the property.

Common situations in which the parties’ beneficial interests may not be sufficiently expressed arise where:

  1. the property is held in joint names, but there is no express declaration of trust as regards the beneficial interests

  2. the property is held in the name of only one party

Joint tenancy and the effect of severance

The basic rule is, on severance, joint tenants who have not expressly declared the extent of their respective beneficial interests are presumed to hold the property in equal shares according to the number of joint tenants. In this respect, equity is said to follow the law. In Stack v Dowden, Lady Hale stated that ‘cases in which the joint legal owners are to be taken to have intended that their beneficial interests should be different from their legal interests will be very unusual’.

However, it was expressly acknowledged in Stack that, because this is only a presumption, it is open to either party to try to establish that a different, ie unequal