Joint Ownership, Subjective Intention and the Common Intention Constructive Trust

Abstract

This article considers the situation where a family home has been purchased in joint names, without any express declaration of the beneficial interests. The courts have interpreted the applicable equitable doctrines so as to make it very difficult for a defendant to resist a claim by his or her partner to a share greater than the joint share indicated by the legal title. The prevailing view is that such a claim can only be defeated if the defendant can demonstrate that there was a communicated common intention between the parties that the beneficial ownership would be joint or equal. Thus, the defendant is effectively cast in the role of claimant and required to establish a common intention constructive trust in his or her own favour (and moreover, one in which there is express agreement as to quantification), notwithstanding the fact that he or she holds the legal title as a joint tenant. Emphasising the importance of the subjective intention of the parties, this article works through an approach which would allow the courts more scope to reach results which reflect the impulse towards sharing which is often present in intimate cohabitations.

Keywords: Law of Trusts, Law of Equity, Family Home, Constructive trusts, Cohabitation, Beneficial interests, Co-ownership, Declarations of trust, Intention

JEL Classification: K00, K1, K10, K11, K12, K19, K2, K20, K29, K3, K30, K39, K4, K40, K49