Resulting and constructive trusts play a central role in determining beneficial interests in land where legal title is not held in equal shares. This essay critically assesses the claim that the relevant law is unclear, inconsistent and unfair. It examines the doctrinal foundations of each trust, identifies areas of judicial difficulty, and evaluates whether outcomes can be regarded as unjust, particularly in domestic contexts.
Resulting Trusts: Presumptions and Their Application
Resulting trusts arise primarily where a person contributes to the purchase price of land but is not reflected on the legal title. The presumed resulting trust rests on the principle that equity presumes the contributor did not intend a gift. This approach provides a measure of clarity in straightforward financial disputes. However, the presumption of advancement, which historically displaced the resulting trust in cases involving husbands and wives or parents and children, has generated inconsistency. Legislative reform in the Equality Act 2010 has abolished the presumption in most contexts, yet its lingering influence in older authorities creates uneven treatment across different factual scenarios. Consequently, outcomes may appear arbitrary depending on the relationship between the parties.
Constructive Trusts and the Search for Common Intention
Constructive trusts are imposed to prevent unconscionable conduct, typically requiring proof of common intention and detrimental reliance. The House of Lords in Lloyds Bank plc v Rosset [1991] established a strict test focused on express agreement or direct contributions. Subsequent decisions, notably Stack v Dowden [2007] and Jones v Kernott [2011], shifted emphasis towards a broader range of conduct and the “whole course of dealing” between the parties. While this development recognises the complexity of modern family arrangements, it has reduced predictability. Different judges may weigh the same factors divergently, leading to outcomes that are difficult to forecast. The absence of a statutory framework guiding quantification of shares further exacerbates uncertainty, especially where evidence of intention is ambiguous.
Fairness Concerns in Domestic and Commercial Settings
The law’s application raises questions of fairness. In domestic cases, the requirement to demonstrate express discussions or substantial financial contributions can disadvantage partners who have contributed through childcare or homemaking. Such contributions are often undervalued, producing results that appear inequitable. Conversely, the more flexible approach adopted in Stack v Dowden may over-compensate non-financial contributions in some instances, creating inconsistency between similar cases. Commercial disputes receive stricter scrutiny, revealing a dual standard that can seem arbitrary. Although the Trusts of Land and Appointment of Trustees Act 1996 grants courts wide discretion to order sale or adjust interests, this remedial flexibility does not eliminate the underlying doctrinal incoherence.
Conclusion
The law of resulting and constructive trusts of land exhibits significant elements of uncertainty and inconsistency, particularly in the quantification of beneficial interests. These features frequently produce outcomes that many would regard as unfair, especially within intimate relationships. While judicial attempts to modernise the rules have mitigated some rigours, they have simultaneously introduced new sources of unpredictability. Comprehensive statutory reform may therefore be necessary to achieve greater clarity and equitable treatment.
References
- Equality Act 2010. London: The Stationery Office.
- Gray, K. and Gray, S.F. (2009) Elements of Land Law. 5th edn. Oxford: Oxford University Press.
- Jones v Kernott [2011] UKSC 53.
- Lloyds Bank plc v Rosset [1991] 1 AC 107.
- Stack v Dowden [2007] UKHL 17.
- Trusts of Land and Appointment of Trustees Act 1996. London: The Stationery Office.
