#2063 - What Is The Driver Behind The Family Homes Cases - Land Law

What is the Driver behind the Family Homes Cases?

Intention?

• Fits with the requirement for genuine agreement (albeit inferred)

• Problem 1: This would seem to constitute an express trust

  • Gardner: D's act of conferment will constitute either a declaration of an express trust of land (in the single name scenario),

    • or a disposition of a subsisting beneficial interest (in the joint names scenario).

    • The law requires that acts taking these particular forms must be done in writing.

      • Writing is characteristically missing from the cases in which we are interested.

      • Therefore, w/o writing, we cannot argue that the law should give effect to D's act nonetheless, and that doing so is a proper mission for the jurisdiction under discussion, without more.

• Problem 2: Equity as an instrument of fraud cannot help this

  • No need for reliance

    • Under the suggestion, C needs to rely on the common intention.

      • This was a requirement of earlier decisions (e.g. Pettit), but was omitted from the account given in Stack v Dowden and Abbott v Abbott.

  • Problem with the redress

    • Even if reliance is present, why is right to give effect to that?

      • We could give effect to a reliance loss, but it should track C’s actual loss, not the whole thing D purported to confer.

Reliance loss?

• Fits more easily with the cases – no need for invented agreements

• Problem 1: Does not fit the remedy

  • Gardner: Under our jurisdiction, a genuine common intention that C should have such-and-such a beneficial interest will result in his gaining that interest.

    • If the project were to redress C's reliance loss, this would be a surprising result

      • If C only contributed 10,000 to the house, why should they get 50% of it?

      • Only sometimes will C’s reliance loss be the promised share of the house (e.g. if forewent getting a different house)

Redressing Unjust enrichment

• What is it?

  • Gardner:

    • Unjust enrichment occurs where C enriches D without basis

      • It’s commonly thought that C needs to be aware of the enrichment, but per Birks, it could work if we don’t require some “unjust” factor (e.g. mistake) but simply enrichment w/o basis

        • To enrich another w/o thoughts at all would be enrichment w/o basis

• Draws a line between C and D when strangers and when communal relationship

  • Gardner: Where C and D are strangers, we are disinclined to perceive a transaction between them as having no basis in this way,

    • Their being strangers makes us expect C to have been more alert; we are unsympathetic, both empirically and normatively, to the assertion that he had no particular thoughts as he enriched D.

    • But in a context like ours, characterised by an emotional relationship between C and D, it is different.

      • Here, we find it unsurprising if C lets his guard down, and so behaves towards D with no particular thoughts;

  • Etherton: There are particular policy reasons which underpin giving effect to the trust in this context

    • Therefore, it can’t be used for other trusts.

• Problem 1: Relief

  • Me: Etherton sees relief here because of the amount of money C expended, not intending to give a smaller share than her contributions suggested

    • While this fits with the facts of Stack, it doesn’t fit with the single name cases where the interest given is much smaller

  • Gardner: A claim based on unjust enrichment would aim to restore to C the amount by which he enriched D.

    • If C enriched by 1/3, C would get 1/3 back.

    • Under this jurisdiction, if C agreed to get half, he would get half.

  • Hence, if our focus is on genuine agreement and intention, we’re not giving it

  • And if we’re imputing intention to make it fair, we’re not doing unjust enrichment either.

Effectuating the normative implications of the relationship

• Gardner: In the contexts we talk about, it will be right to give C an enlarged interest because this is what the relationship itself requires

  • Say C and D are married or civil partners. Their relationship generates at any rate a moral obligation on each of them to share their resources with the other.

    • In the MCA, this is effectuated by statute, but in its absence this would take effect via a constructive trust.

  • Outside marriage or civil partnership, an essentially similar argument can in principle be made,

    • but its precise import will depend on the implications of the individual relationship in question.

      • If the parties are committed to sharing their material wealth, the upshot will be just as though they were married or civil partners.

      • But there will no such outcome if, while committed in other ways (for example, in respect of sexual fidelity), they keep their material affairs quite separate.

      • We are unlikely to an intermediate position since it will be very hard to effectuate the precise implications of every relationship on its facts.

  • If we are imputing intentions, it is easy to avoid the problem of the fact there is no writing

    • Etherton: The law is relying on the fiction of agreement when it need not do so makes the decision making opaque, and is...