Implied trusts and trusts of the family home - Common intent...

Learning Outcomes

This article explains the principles governing common intention constructive trusts in the family home context and the pathway from establishing an equitable interest to quantifying shares. It covers how courts identify a shared intention (by express discussion, by “excuses”, or by inference from conduct), what amounts to detrimental reliance, and how these elements interact with statutory formalities. It also clarifies the modern position in joint name and sole name cases, including the presumptions the courts start from, when and how those presumptions are displaced, and the role of inference versus imputation when fixing shares.

You should be able to distinguish constructive trusts from resulting trusts in domestic property disputes, use the Rosset framework for establishing a constructive trust, and apply the “whole course of dealing” and ambulatory common intention approaches from Stack v Dowden and Jones v Kernott to quantify beneficial interests. You should also recognise when an express declaration of trust is conclusive and how Section 53(2) Law of Property Act 1925 permits constructive trusts to arise without signed writing, despite the usual rules for trusts of land.

SQE1 Syllabus

For SQE1, you are required to understand how beneficial interests in property, especially the family home, are determined when legal title does not reflect the parties' shared intentions or contributions, and to apply the principles of common intention constructive trusts, with a focus on the following syllabus points:

• The distinction between express and implied trusts.
• The requirements for establishing a common intention constructive trust: common intention and detrimental reliance.
• How express common intention can be demonstrated (e.g., through discussions or excuses).
• How common intention may be inferred from conduct (e.g., direct financial contributions).
• The nature of detrimental reliance required.
• How the court quantifies beneficial interests in sole name and joint name cases (Stack v Dowden, Jones v Kernott).
• The limited role of resulting trusts in the family home context compared to constructive trusts.
• The effect of a conclusive express declaration of trust in the transfer documentation where present.
• The interaction with formalities: constructive trusts fall within the s 53(2) LPA 1925 exception and do not require signed writing.
• The difference between inference (finding what the parties actually intended) and imputation (at the quantification stage only, where the court attributes to the parties a fair intention they never actually formed).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is LEAST likely, on its own, to allow a court to infer a common intention for a non-legal owner to have a beneficial interest in a property held in their partner's sole name?
   1. Direct contribution to the initial deposit.
   2. Regular contributions to mortgage payments.
   3. Paying for significant structural improvements to the property.
   4. Paying all household utility bills and grocery expenses.
2. In Stack v Dowden, where property was held in joint names but contributions were unequal, what was the starting presumption regarding beneficial ownership?
   1. Beneficial ownership follows the legal title (joint and equal).
   2. Beneficial ownership is proportionate to financial contributions.
   3. The property is held on a resulting trust.
   4. The court imputes a fair intention based on contributions.
3. Which legal principle allows the court to quantify beneficial shares based on the parties' entire course of dealing, particularly when their intentions change over time?
   1. The doctrine of proprietary estoppel.
   2. The principle established in Lloyds Bank plc v Rosset.
   3. The 'ambulatory' common intention approach from Jones v Kernott.
   4. The presumption of advancement.

Introduction

When couples or family members share a home, the legal title (who is formally registered as the owner) may not always reflect their understanding or contributions regarding who truly owns a beneficial share. Disputes often arise upon relationship breakdown or death. While an express declaration of trust usually provides clarity, many cohabiting couples do not formalise their arrangements. In such situations, equity may step in to establish ownership rights through implied trusts, most notably the common intention constructive trust. This type of trust arises not from a formal document but from the parties' conduct and shared understanding.

Constructive trusts fall within the statutory exception for implied trusts and therefore do not require signed writing to be enforceable in relation to land (s 53(2) LPA 1925). By contrast, where the parties do execute a written express declaration of trust of the beneficial interests (for example, in the transfer document when the property is bought), that declaration is generally conclusive absent fraud, mistake, or undue influence. In domestic cases without such a declaration, the constructive trust is the primary vehicle for reflecting equitable ownership, with resulting trusts playing only a limited role focused on strict purchase-money contributions.

ESTABLISHING A COMMON INTENTION CONSTRUCTIVE TRUST

A common intention constructive trust arises where equity recognises that, despite the position regarding the legal title, the parties shared a common intention that the beneficial interest in the property should be shared (or held differently from the legal title), and the party claiming a beneficial interest (or a larger share than their legal title suggests) acted to their detriment in reliance on that intention.

Key Term: Common Intention
A shared understanding or agreement between parties regarding the beneficial ownership of a property, which does not need to be in writing and can be inferred from conduct.

Key Term: Detrimental Reliance
Action taken by a claimant, based on a common intention about property ownership, which leaves them worse off if that common intention is denied. This act must be significant and linked to the belief about ownership.

The modern structure is twofold:

• Stage 1: Establish the common intention constructive trust (by express agreement or by inference) and show detrimental reliance.
• Stage 2: Quantify the parties’ beneficial shares, either by reference to their actual intention or, if that cannot be found, by a fair attribution having regard to the whole course of dealing.

There are two main ways courts find the necessary common intention.

Express Common Intention

An express common intention arises from express discussions between the parties regarding ownership, however informal. The court will look for evidence of an actual agreement, arrangement, or understanding. Precise wording is unnecessary; what matters is that ownership (not merely occupation) was addressed. Vague assurances about “a home for life” or “you can always live here” are less persuasive if they speak to occupation rather than proprietary sharing.

Key Term: Excuse Doctrine
Where the legal owner gives a reason for not putting the claimant on the legal title (e.g., “your divorce would be prejudiced,” “the lender won’t accept you”) which implies that joint ownership would otherwise have been intended; this can evidence an express common intention, provided the excuse genuinely points to intended co-ownership.

Discussions and Agreements

This is the clearest way to establish common intention. It involves evidence of conversations where the parties explicitly stated their intention to share the property beneficially. Typical language such as “this is as much your house as mine” or “we’re buying this together even if it’s in my name” has been accepted as capable of proving an express common intention, depending on the context.

Worked Example 1.1

Amir buys a house in his sole name. He tells his partner, Chloe, "Don't worry about the title deeds, this house is as much yours as it is mine. We're building our future here together." Chloe gives up her rented flat and moves in. Five years later, they separate. Can Chloe claim an interest?

Answer:
Yes, potentially. Amir's statement provides evidence of an express common intention to share ownership. Chloe moving in, giving up her tenancy, and potentially making other life changes could constitute detrimental reliance. A constructive trust may arise.

Excuses

Sometimes, the legal owner might give an excuse for not putting the property into joint names at the time of purchase (e.g., related to mortgage eligibility or ongoing divorce proceedings). Such excuses can be evidence of an express common intention to share ownership beneficially (e.g., where the legal owner says joint names would have been used but for the particular obstacle). The excuse must genuinely imply that joint ownership was intended but cannot be achieved for a specific reason. Courts distinguish convincing excuses from statements made simply to placate the other party; the latter will not suffice.

Worked Example 1.2

Dev and Freya buy a house together for £300,000, registered in Dev's sole name. Freya contributes £30,000 to the deposit. They live there for 10 years. Dev pays the mortgage. Freya pays all household bills and pays for a £20,000 loft conversion. They separate. How might Freya's share be assessed?

Answer:
Freya's £30,000 deposit contribution is strong evidence from which to infer a common intention she should have an interest, and also demonstrates detrimental reliance. A common intention constructive trust likely arises. To quantify her share, the court will look at the whole course of dealing, including her deposit contribution, payment of bills (potentially enabling Dev to pay the mortgage), and the loft conversion. Her share might be assessed as being significantly more than just her initial 10% contribution, reflecting the overall fairness of their arrangements.

Inferred Common Intention

Where there is no evidence of express discussions, the court may infer a common intention from the parties' conduct. Historically, a strict approach emphasised direct financial contributions to the purchase price (deposit or mortgage instalments) as the touchstone for inference. That remains the strongest basis for inference in sole name cases, though important developments allow a broader yet still disciplined approach.

Direct Financial Contributions

Paying part of the purchase price or contributing directly to mortgage instalments is strong evidence from which common intention can be inferred. It is also usually sufficient to establish detrimental reliance.

Indirect Contributions that Enable Mortgage Payments

In relatively confined circumstances, if the parties agree a division of financial responsibilities such that one pays household expenses in order to free the other’s resources to pay the mortgage, and the contributions are substantial and sustained, a court may treat those payments as indirectly contributing to acquisition and infer a common intention. Evidence of the agreement and the effect of the payments is critical; routine domestic expenditure, without more, will not suffice.

Post-Rosset Developments: The Comprehensive Approach

Following leading Supreme Court authority, the courts now adopt a broader, more comprehensive approach, especially in joint name cases, but also influential in sole name disputes. While direct financial contributions remain important, the court considers the 'whole course of dealing' between the parties when determining the existence and scope of shared beneficial ownership. Inference is still an exercise in identifying what the parties actually intended, evidenced by their conduct.

Key Term: Whole Course of Dealing
The court's examination of all aspects of the parties' relationship and conduct concerning the property to determine their shared intentions regarding ownership, including acquisition, financing, financial arrangements, improvements, and changes over time.

Factors considered include:

• Discussions at the time of purchase.
• The reasons the property was acquired in joint/sole names.
• The nature of the relationship.
• Whether there are children and the provision of a family home.
• How the purchase was financed initially and subsequently.
• Whether finances were kept strictly separate or pooled.
• How household expenses and mortgage were arranged.
• Significant improvements to the property funded by one party.

Revision Tip

While the broader survey is key to quantification and can be relevant to inference, inferring intention solely from non-financial or indirect financial contributions in a sole name case remains difficult. Direct contributions to the purchase price or mortgage are still the clearest basis for inference. If such contributions are absent, look for evidence of an agreed arrangement under which the claimant’s payments freed up the owner’s resources to meet the mortgage.

Detrimental Reliance

Once a common intention (express or inferred) is established, the claimant must show they acted to their detriment in reliance on it.

• Express intention cases: The range of detrimental acts can be broad, including significant home improvements, funding major renovations, substantial financial contributions to household expenses that directly enable mortgage servicing, or life-changing steps such as giving up a tenancy, job, or career on the strength of promised beneficial sharing.
• Inferred intention cases: The conduct used to infer intention (e.g., paying the deposit or mortgage instalments) typically doubles as detriment.

Mere day-to-day domestic labour or ordinary living expenses are generally insufficient on their own, especially in the absence of either direct contributions to acquisition or a clear agreement linking the claimant’s payments to the mortgage. The longer and more substantial the reliance, the stronger the case.

Worked Example 1.3

Jules owns a flat in her sole name. Her partner, Kai, moves in. They agree that Jules will meet the mortgage and Kai will pay all utility bills, council tax, and groceries “so the mortgage can be covered.” Over eight years, Kai also pays for a new kitchen and boiler. There were no explicit discussions of ownership shares. Do the facts support a constructive trust?

Answer:
The express agreement that Kai’s payments were to enable mortgage servicing, combined with long-term substantial contributions and funding significant capital items (kitchen, boiler), may allow the court to infer a common intention and find detrimental reliance. If a constructive trust is established, the court will quantify shares by surveying the whole course of dealing, rather than strictly matching contributions pound-for-pound.

Worked Example 1.4

Noah buys a house in his sole name. He tells Phoebe, “I can’t put you on the title because your divorce is ongoing and it will complicate matters, but this is our home.” Phoebe later pays for a major extension. Does Phoebe acquire an interest?

Answer:
The excuse given by Noah implies that joint ownership was intended but obstructed for a specific reason. Coupled with Phoebe’s significant expenditure on the property, there is strong evidence of express common intention and detrimental reliance. A constructive trust is likely to arise, and the court will then assess Phoebe’s share having regard to the whole course of dealing.

QUANTIFYING THE BENEFICIAL INTEREST

Once a common intention constructive trust is established, the court must determine the size of each party's share. The court first asks whether there is evidence of what shares were intended. If not, it will award the shares it considers fair having regard to the whole course of dealing. In doing so, the court distinguishes between inference and imputation:

• Inference: Deriving the parties’ actual intended shares from their conduct and arrangements.
• Imputation: At the quantification stage only, where the court cannot find any actual intention about shares, it may attribute a fair intention to the parties based on the whole course of dealing.

Key Term: Imputation
A technique used at the quantification stage to attribute to the parties a fair division of shares where their actual intention about proportions cannot be deduced, having regard to their whole course of dealing.

Key Term: Joint Names Presumption
Where the property is conveyed into joint names without an express declaration of trust, the starting point is that equity follows the law: the beneficial interests are presumed to be joint and equal unless displaced by evidence of a different common intention.

Joint Name Cases

Where the property is in joint names, the starting point (presumption) is that equity follows the law, meaning the beneficial interest is also held jointly and equally (50/50).

This presumption can be rebutted if evidence shows the parties had a different common intention, either at the time of acquisition or later. The court will again look at the whole course of dealing to ascertain the intended shares. Proving a different intention is difficult; unequal contributions, standing alone, are usually not enough unless coupled with compelling evidence such as separate finances kept rigidly apart over the long term, or subsequent events evidencing a shift in common intention.

The courts recognise that common intention in joint name cases can be ambulatory: it can change over time due to later events (for example, one party moving out and ceasing contributions for many years), in which case the fair division may diverge from the original equal split.

Worked Example 1.5

Mina and Leo buy in joint names. Mina paid two-thirds of the deposit; both paid the mortgage for 18 months, then Leo moved out and made no further contributions for a decade, while Mina single-handedly met repayments and funded an extension. They never executed a declaration of trust. Are shares necessarily 50/50?

Answer:
The joint names presumption starts at 50/50. However, the whole course of dealing—especially Leo’s long-term departure, Mina’s sole payment of the mortgage thereafter, and funding improvements—may show that the parties’ common intention changed over time. The court can attribute unequal shares that fairly reflect this, departing from the initial equality.

Sole Name Cases

Where the property is in a sole name, there is no initial presumption of joint beneficial ownership. The claimant must first establish entitlement to an interest via the common intention constructive trust (express or inferred intention plus detriment). Only after an interest is established does the court quantify that interest.

The court then quantifies the interest based on what is fair having regard to the whole course of dealing between the parties. That approach allows for a broader assessment than the strict contribution-based approach of resulting trusts and recognises that a fair share may exceed a claimant’s initial cash contribution where later conduct and arrangements justify it.

Exam Warning Do not conflate the establishment step with the quantification step in sole name cases. Establishment often requires clear evidence of express agreement or direct/indirect contributions indicative of acquisition. Quantification is broader and may consider non-financial matters, improvements, and the parties’ financial arrangements over time. Also, distinguish constructive trusts (dominant in family home disputes) from resulting trusts, which focus narrowly on initial purchase money and now have a limited role in domestic cases.

Worked Example 1.6

Selim purchases a house in his sole name with a 10% deposit and mortgage. His partner, Tara, contributes nothing to the deposit but, by agreement, pays the mortgage for two years while Selim is between jobs. Tara also pays half thereafter for three more years. Is Tara entitled to a share, and how large?

Answer:
Tara’s substantial and sustained mortgage payments allow the court to infer a common intention to share, and they establish detrimental reliance. A constructive trust is likely. For quantification, the court will consider the whole course of dealing—her period of meeting the mortgage in full and then half, and any other contributions—arriving at a fair proportion which could be significant, not merely nominal.

Interplay with Resulting Trusts

Resulting trusts can still have a role where the claimant’s only contributions were direct purchase monies at the time of acquisition (for example, an identifiable part of the deposit), and there is no evidence sufficient to found a constructive trust. In such circumstances, the claimant might secure a share proportionate to those contributions. However, once a constructive trust is established, the resulting trust methodology is displaced and the court may award a share that does not mirror strict contributions.

Express Declarations and Formalities

If the transfer documentation includes a clear express declaration of the beneficial interests (e.g., joint tenants in equity, or tenants in common in stated shares), courts will, save for limited exceptions, give effect to it. A claimant who seeks to go behind a clear declaration faces a high evidential burden. Where there is no express declaration or it is absent because the legal title is in a sole name, the constructive trust analysis applies. Constructive trusts are exempt from the requirement for signed writing (s 53(2) LPA 1925), but any express declaration of trust of land would normally need to be evidenced in writing to be enforceable.

Additional Illustrations and Practical Nuances

• Domestic labour: Caring for the home and children, while valuable, typically does not, in isolation, found a constructive trust. It can be relevant at quantification once a trust is established on other grounds.
• Improvements: Where the claimant funds or undertakes significant improvements that appreciably increase the property’s value (e.g., structural works, extensions), those works may be relevant both to establishing reliance and to quantification, especially in express intention cases.
• Finances and intention: A long-standing pattern of strictly separate finances may support unequal shares in a joint names case; conversely, pooled finances may support equal sharing even if initial contributions differed.
• Changing intentions: Shares can shift over time in joint names cases where later events make equal division inappropriate. The court may determine at what point the parties’ common intention changed and reflect that in shares.

Worked Example 1.7

Harper and Quinn bought a home in Quinn’s sole name. Harper paid nothing on purchase but later received an inheritance and paid for a full rewire, roof replacement, and new windows, materially increasing the property’s value. There were no ownership discussions. Harper also paid the mortgage for eight months while Quinn was unemployed. Is a share likely?

Answer:
The combination of significant capital improvements and a period of mortgage servicing provides strong evidence of a shared common intention by inference and of detrimental reliance. If a constructive trust is found, the court will determine a fair share, likely exceeding a purely nominal percentage, with weight given to the proven improvements and period of meeting mortgage commitments.

Joint Name Cases Revisited: Displacing Equality

Although “equity follows the law” in joint names, courts have recognised that unequal shares can be justified by powerful evidence to the contrary. Separateness of finances throughout, dramatic disparities in financial input not offset by the course of dealing, or later changes (one party leaving and ceasing contributions for many years) can tip the scales. The exercise remains fact-sensitive, with the court reluctant to depart from equality without a compelling evidential basis.

Worked Example 1.8

Ava and Ben buy a home in joint names without any declaration. They have no children. For the entire 12-year relationship, they keep separate accounts, split bills unequally reflecting income, and invest separately. Ava pays 80% of the deposit and two-thirds of the mortgage, while Ben pays the remainder and a smaller share of outgoings. On separation, Ava seeks 70%. Is this realistic?

Answer:
The starting point is 50/50. However, evidence that finances were kept strictly separate and contributions were markedly unequal throughout may displace equality. A substantial departure towards Ava’s position may be justified if the court concludes the parties intended their beneficial ownership to mirror the separate nature of their finances and contributions.

Key Point Checklist

This article has covered the following key knowledge points:

• Common intention constructive trusts arise where legal title does not reflect the parties' shared intentions about beneficial ownership.
• Establishing the trust requires proof of a common intention (express or inferred) and detrimental reliance by the claimant.
• Express common intention can be shown by explicit discussions or by credible “excuses” for not placing the claimant on the legal title that imply intended sharing.
• Inferred common intention arises primarily from direct financial contributions to acquisition or mortgage payments; in defined circumstances, substantial payments that enable mortgage servicing may suffice.
• Detrimental reliance requires significant disadvantage or change of position; routine domestic chores and ordinary living expenses typically do not suffice on their own.
• In joint name cases, the starting point is 50/50 beneficial ownership, rebuttable by clear evidence of a different common intention, including changes over time.
• In sole name cases, the claimant must first establish an interest; only then does the wider, fairness-based quantification exercise apply, drawing on the whole course of dealing.
• Resulting trusts have a limited role in family home cases; where a constructive trust is established, resulting trust methodology is displaced.
• Express declarations of trust are generally conclusive; in their absence, constructive trust principles govern. Constructive trusts are exempt from signed writing under s 53(2) LPA 1925.
• The court may infer intended shares; if that is not possible, it may impute a fair division based on the whole course of dealing (imputation confined to quantification).

Key Terms and Concepts

• Common Intention
• Detrimental Reliance
• Whole Course of Dealing
• Excuse Doctrine
• Joint Names Presumption
• Imputation