#17738 - Formalities - Trusts and Equity

Formalities

Creating a trust usually requires only the formation and expression of an intent to create a trust, plus constitution if S is not to be a T. However, there are exceptions to this, such as trusts of land.

s53(1)(b) LPA 1925 – Declarations of Trusts over Land

1. s53(1)(b): “A declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will.”

   1. This does not require the declaration itself to be made in writing. There must just be a signed document which evidences the existence and terms of the trust (could be long after S expresses his intention to create a trust).

      1. Rochefoucauld v Boustead weakened the section, holding that oral evidence is sufficient.

      2. Ong v Ping further weakened the section, holding that where the written and signed document is by itself insufficient to satisfy s53(1)(b), background circumstances can be taken into account to prove the declaration of trust.

   2. Once the signed document is created, the trust is to be treated as validly declared from when S made his initial oral declaration (Gardner v Rowe).

   3. s53(2): “This section does not affect the creation or operation of resulting, implied or constructive trusts.”

      1. BUT: This is superfluous. s53(1)(b) only applies to a ‘declaration’ of trust formality rule is irrelevant if the core trust duty arises “by operation of law”, e.g. by proprietary estoppel.

   4. Justification: Land is more important than other property (socially, economically, politically) it matters more who has a claim to it more certainty and clarity required. Also, dealings involving land are slow and commonly involve lawyers requiring formality is not much of a burden.

      1. Justifications for formality rules generally:

         1. The provision of evidence

         2. The promotion of caution

         3. The protection of A from fraud

s53(1)(b) brings all of these benefits

4. The provision of publicity

s53(1)(b) does NOT bring this benefit; where A self-declares a trust over the property for B and transfers his freehold to C, B’s right is prima facie binding on C even though the written record of the trust was only made after C acquired the freehold (Gardner v Rowe) s53(1)(b) does not help C in discovering B’s pre-existing property right.

1. BUT: This poses few problems for C, because the conveyance of the freehold to C will take priority over B’s interest under the trust of land unless B’s interest under the trust of land is protected by a notice on the register (s33(a)(i) LRA, s29(2)(a)(i)) or B is in actual occupation of the land at the time of the conveyance (s29(2)(a)(ii)) – both of which are discoverable.

   1. NB: This is why it is important not to look at s53(1)(b) in isolation. Given the LRA provisions, it may be justifiable to apply a more lenient formality rule when considering the acquisition of such a right.

2. The nature of the rule: two views…

   1. Rule of validity

      1. On this view, unless and until there is a signed document which provides evidence of the trust, there is no trust.

      2. Supported by some cases (Gissing v Gissing, Hodgson v Marks, Lloyds Bank v Rosset) BUT these statements are weakened by the mistaken suggestion that the declaration of trust must be made, rather than merely evidenced in writing.

         1. In Hodgson v Marks,

   2. Rule of evidence

      1. On this view, writing is not needed to create a trust of land, but signed writing is needed for a person to prove the existence of the trust to a court. Failure to satisfy the requirement just means there is an unenforceable trust.

      2. Supported by Gardner v Rowe – when the document post-dates S’s declaration of trust, the trust is to have been validly declared when S made his original oral declaration (it is just only enforceable once the signed writing is created)

         1. A consequence of this can be illustrated: A has a freehold over land which he rents out; A makes an oral declaration that he holds the land on trust for B, so pays the rental income for the first month of 1000 to B; when A and B fall out, and A stops paying B the rental income, B cannot prove that A is under a duty to pay him the rental income; but A cannot claim back the initial 1000 he paid to B – if B keeps the money, he is not unjustly enriched at A’s expense – there is a legal basis on which B can keep the money (they are interpreted as gifts?)

         2. BUT: Webb: This is still compatible with the ‘validity’ view. The trust would just take effect retrospectively once the document exists.

   3. Thus there is no clear answer from the caselaw.

      1. Webb: If we take the ‘evidence’ view, then a court will not be able to enforce a valid trust over land, simply because it is not evidenced in writing better view may be the ‘validity’ view and treat a declaration of trust over land not (yet) backed up by documentation as wholly ineffective.

3. Self-declaration of trust. s53(1)(b) is uncomplicated where S seeks to self-declare himself T of land the trust is unenforceable if there is no writing.

4. Transfer to a trustee. The effect of s53(1)(b) is more complex where the A transfers land to B to hold on trust for A or C, but fails to evidence the declaration in signed writing. The transfer of title from A to B remains effective who has the beneficial ownership in the land?

   1. Two-party cases (i.e. where A transfers to B to hold on trust for A)

      1. Rochefoucauld v Boustead, although more complex (the mortgagee sold the land to B to be held on trust for the mortgagor A), is treated as a two-party case. The CoA held that equity will not allow a statute to be used as an instrument of fraud. To deny the existence of the trust would amount to a fraud by B against A. The trust over land could be evidenced by oral evidence, rather than the signed writing required by s7 Statute of Frauds (now s53(1)(b) LPA) dilutes the importance of s53(1)(b).

         1. Lindley LJ: “The trust which the plaintiff has established is clearly an EXPRESS trust … The trust is one which both plaintiff and defendant intended to create.” [Swadling approves this view (check his argument) – bc there is fraud, you cannot use the statute as the basis of fraud – this is the underlying reasoning behind the ‘express trust’ view Julia thinks this kind of reasoning just makes a mockery of the formality rules]

            1. NB: Had the court held this was a constructive trust, it could not have helped the plaintiff on the facts as the Statute of Limitations would have barred the action.

               1. [is it relevant that for a trust to arise only the settlor need intend it – not both parties, as Lindley LJ seems to suggest?]

               2. Supported by Swadling –

               3. See Soar v Ashwell for a broader notion of ‘express trust’.

         2. Discussion. McFarlane: A did not commit the wrong of deceit here (there was no deliberate or reckless misrepresentation of an existing fact) A’s ‘fraud’ arose from his resiling from a promise, but there is then no need to invoke the ‘fraud’ argument, as we can use the ‘receipt after a promise’ principle to impose a duty on A.

            1. McFarlane asserts that B’s coming under the trust duty is best explained without reference to the declaration McFarlane supports a constructive trust approach based on a specific principle relevant to the facts (here ‘receipt of a promise’, other cases perhaps ‘statute cannot be used as an instrument of fraud’).

      2. Bannister v Bannister – A sold two cottages to her brother-in-law (B) on the oral undertaking by B that he would let her stay in one of the cottages for as long as she liked rent-free. The price of 250 was at least 150 less than the market value of the cottages. A had been living in one of the cottages since the sale, and B tried to renege on the agreement and evict A.

         1. CoA held that B held the property on trust for A, even though the conveyance itself was not fraudulently obtained.

         2. CoA held that the absolute conveyance need not have expressly stipulated that the land was to be held on trust; “It is enough that the bargain should have included a stipulation under which some sufficiently defined beneficial interest in the property was to be taken by another.” It makes no difference whether the entire beneficial interest is to be retained by A (as in Booth v Turle) or only a limited beneficial interest is retained by A.

         3. Scott LJ held that the trust was CONSTRUCTIVE, contrary to the court’s finding of an express trust in Rochefoucauld.

            1. Supported by Gardner

      3. Hodgson v Marks – H owned and lived in a house, and agreed to transfer the house to her lodger (E) on oral agreement that the beneficial ownership was to remain in H. E then sold the house to M. CoA held that the express oral declaration of trust was ineffective due to lack of writing CoA held that an express trust which is ineffective “due to uncertainty, or perpetuity, or lack of form” will give rise to a RESULTING trust, provided the transfer was not intended to operate as a gift. The resulting trust would not be affected by s53(1)(b).

      4. Whether the Rochefoucauld trust is express, constructive or resulting illustrates why it works…

         1. If a constructive or resulting trust, then there is no declaration of trust so s53(1)(b) does not apply (or similarly it does not apply by virtue of s53(2)).

         2. If express trust, then the oral evidence was sufficient to displace the need to satisfy the s53(1)(b) writing requirement.

   2. Three-party cases (i.e. where A transfers to B to hold on trust for C):

   3. s53(1)(b) suggests that, without writing, the trust cannot be enforced, but the transfer of title from A to B remains effective.

      1. BUT: The courts’ maxim: ‘equity will not allow a statute to be...