Constructive trusts — common intention and the family home

The common intention constructive trust (CICT) determines beneficial ownership of property, particularly the family home, where legal title doesn't reflect the parties' true intentions. Following Stack v Dowden [2007] UKHL 17, courts undertake a holistic survey of the parties' entire course of dealing to ascertain their shared intentions about beneficial ownership, moving beyond Rosset's narrow focus on financial contributions. The analysis proceeds in two stages: (1) acquisition—does the claimant have any beneficial interest? (2) quantification—what size share does each party hold? Where actual intentions cannot be discerned at the quantification stage, Jones v Kernott [2011] UKSC 53 permits courts to impute what reasonable parties would have intended. This evolution from mechanical property analysis to relationship-sensitive evaluation reflects judicial response to legislative inaction regarding unmarried couples' property rights.

Stack v Dowden [2007] UKHL 17: Revolutionised the field by requiring courts to examine 'the whole course of dealing between the parties' rather than focusing mechanically on financial contributions. Establishes that in domestic contexts, the presumption is that equity follows the law (beneficial ownership mirrors legal title) but this is rebuttable through holistic analysis.

Jones v Kernott [2011] UKSC 53: Explicitly endorsed judicial power to impute intentions at the quantification stage where actual intentions cannot be inferred. Clarified the crucial distinction between inferring actual intention from evidence and imputing what reasonable parties would have intended.

Lloyds Bank v Rosset [1991] 1 AC 107: Lord Bridge's restrictive framework required either express discussions about ownership or direct financial contributions. Though superseded in domestic contexts by Stack, remains historically significant and potentially applicable in commercial contexts.

Laskar v Laskar [2008] EWCA Civ 347: Context matters—the Stack framework applies differently to investment properties or commercial arrangements between family members, where financial contributions carry greater weight than in domestic contexts.

Hudson v Hathway [2022] EWCA Civ 1648: Demonstrates modern courts' willingness to find unequal beneficial shares even without express discussion, inferring intentions from financial arrangements and conduct over decades.

Courts first characterise the context—domestic, commercial, or familial—as this affects which factors carry weight. For sole ownership, start with presumption of sole beneficial ownership; for joint names, presume beneficial joint tenancy (equal shares). At the acquisition stage, establish common intention through express discussion, conduct implying agreement (financial contributions, assumption of joint liability, renovations), plus detrimental reliance. At quantification stage, examine factors from Baroness Hale's non-exhaustive list: discussions at purchase, reasons for legal ownership structure, relationship nature, children, financing, financial arrangements, payment of outgoings, and personalities. In domestic contexts, non-financial contributions now carry evidential weight. Where no actual intention about shares can be inferred, courts may impute fair shares based on whole course of conduct. Remember detrimental reliance remains a formal requirement, though modern courts find it readily in continued cohabitation or domestic contributions.

Students wrongly apply Rosset's restrictive framework rather than recognising Stack now governs domestic contexts. Avoid conflating acquisition and quantification stages—imputation only applies to quantification. Don't claim courts are 'imputing' whenever using circumstantial evidence; inference finds actual intentions while imputation attributes intentions never formed. Context matters: mechanically applying Stack to commercial situations misses that financial contributions carry greater weight outside domestic settings. While modern cases downplay detriment, acknowledge it remains a requirement. Maintain distinction from proprietary estoppel—CICT requires common intention plus detriment, while estoppel needs representation, reliance and unconscionability.