What's mine is mine and what's yours is ours

20 February 2018 | Applicable law: England and Wales

Rand v Tran is a recent case where a constructive trust was implied due to the common intention of the parties, as evidenced by their respective contributions – Mr Rand was entitled to a 50% interest in the property held in the name of his ex-girlfriend.

The facts

Mr Rand and Ms Tran both worked at the Bank of China in London. He was a facilities manager and she was in the retail banking sector. They began a relationship in late 2006 but each retained their own properties.

In April 2012, Ms Tran bought 219 Bexley Road for £260,000 with a mortgage of £195,000. Costs and stamp duty came to £9,124. Mr Rand paid £20,000 towards the deposit.

Mr Rand said that they had agreed to buy the property on a 50:50 basis and live there together with their respective children and Mr Rand's mother. He said that they agreed that he would make up the balance of his share by payment for work to the property. He said that Ms Tran had recommended that the property be bought in her sole name for tax reasons, which he agreed, and that they would later buy a second investment property in his name.

Ms Tran's version of events was somewhat different. She said that she had wanted to buy a bigger property for her and her children. She said that she discussed this with Mr Rand but he did not want to take on the burden of another mortgage. It was never intended that the purchase be joint.

Renovation work took a year. There was some disagreement as to what expenses were paid and by whom, but the parties accepted that Mr Rand paid money into a joint account amounting to some £63,000 which was used to pay for the mortgage and renovations to the property. Ms Tran said that these were by way of loan and did not indicate joint ownership.

The relationship broke down in December 2013. Ms Tran moved into the property with her children. In 2014, Mr Rand claimed that he had a beneficial interest in the property under a constructive trust due to his financial contribution to the purchase and the works. Ms Tran contested this and the matter was referred to the First-Tier Tribunal.

The decision

The law is that beneficial ownership is presumed to follow the legal title and the burden is on a claimant to prove that joint ownership was intended. This requires a common intention which is acted upon by the parties. The intention can be found in an express agreement or inferred from the conduct of the parties.

In this case, there was conflicting evidence but the judge preferred Mr Rand's version of events. He said Mr Rand's financial involvement 'went beyond a mere loan' and that his making payments towards the renovations was 'inconsistent' with Ms Tran's assertion that he did not want the burden of another mortgage. He held Mr Rand did have an interest in the property.

Having decided that Mr Rand did have an interest, the judge had to decided how much to award Mr Rand. The judge started by saying 'there is no presumption that an equal division would be appropriate; nor is it a precise arithmetical exercise.' He then went on to conclude that, although Ms Tran paid slightly more towards the renovations, 'a fair share in respect of beneficial ownership would be fifty per cent.'

Sound familiar?

You may think the facts of this case sound similar to those in some proprietary estoppel cases, and you would be right. The doctrines are very similar. But two key differences are intention and remedy.

A common intention constructive trust is based on an express or implied common intention that ownership is to be shared. Therefore, it usually arises at the time of purchase (although the common intention can change over time).

Proprietary estoppel requires that the claimant must act to his/her detriment in reliance upon an assurance made by the legal owner of the property in relation to that property. Once this is satisfied, the court or tribunal will consider whether it is unconscionable for the legal owner to go back on the assurance.

Proprietary estoppel does not require a common intention. Therefore the legal owner could give an assurance without an intention to give any rights over the property but, if the claimant acts on the assurance to his/her detriment, then equity may step in to give them an interest in the property.

Establishing a proprietary estoppel will not necessarily give a successful claimant the whole or a substantial part of the property. The court will award the minimum amount in order to do justice. In contrast, if a property is found to be held on constructive trust, the extent of that share must be determined.

Which doctrine applies will depend on the circumstances.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.


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