Intention of the Parties to the Transfer Property - Case Study Example

Serapio Maria Perpetua A. Serapio Academia-Research Topic: Property December 5, 2008 Property Part A. (i). In view of the foregoingfacts it is evident that Arnold, Wendy and Bill made a resulting trust. This is based on the intention of the parties with regard to the transfer of the said property. With all intents and purposes, the name of Bill was added in the property only for convenience of getting a mortgage loan and no other. Without any monetary consideration from Bill. This was done without the intention of any beneficial ownership to Bill. 1 Under the law a resulting trust is where although legal title is vested in a trustee, equitable title becomes vested in the settlor.2 Based on the decided case Vandervell's Trusts (No. 2) (1974) ch. 269 it suggests that it is not correct to talk in terms of equitable title remaining with the settlor.3 However quoting Mergarry J, he distinguished that there are two major categories of resulting trust which can be distinguished between automatic and presumed resulting trust , as follows to wit: "(a) The first class of case is where the transfer to B is not made on any trust... there is a rebuttable presumption of a dispositive failure by A, but one of the presumption: the property has been failure carried by B, and from the absence of consideration and any presumption of advancement B is presumed not only to hold the entire interest on trust, but also to hold the beneficial interest for A absolutely. The presumption thus establishes both that B is to take on trust and also what that trust ___________________________________ 1 Westdeutsche v Islington BC (1996) 2 All ER 961 2 Westdeutsche. Supra. 3 Vandervell's Trust (no. 2) (1974) ch. 269 Serapio 2 is. Such resulting trusts may be called "presumed resulting trusts."; (b) The second class of case is where the transfer of B is made o trusts which leave some or all of the beneficial interest undisposed of. Here B automatically holds on resulting trust for A to the extent that the beneficial interest has not been carried to him or others. The resulting trust here does not depend on any intentions or presumptions, but is the automatic consequence of A's failure to dispose of what is vested in him. Since ex hypothesi the transfer is on trust, the resulting trust does not establish the trust but merely carries back to A the beneficial interest that has not been disposed of. Such resulting trusts may be called "automatic resulting trusts". It is further noted that Arnold paid for the loan amortization until his death in 2001. Thereafter Wendy invited Bill in writing to live with her stating that the letter had interests in the house as well. In this situation Wendy's action of writing a letter to Bill inviting him to move in with her and further stating that Bill had an interest in the aforesaid property created an express trust or by implication an implied truest. As a result of this, Bill paid the loan amortization installments amount equivalent to 25% of the original purchase price. Contrary to the original perception that Bill is not an actual party to the ownership of the freehold house bought by Arnold and Wendy who had in truth and in fact had joint ownership the turn of events because of Wendy's action of writing made Bill an owner also. ___________________________________ 3 Vandervell's Trusts (No. 2) (1974) ch. 269,; Megarry & Wade: The Law of Real Property (6th Edition) Serapio 3 According to the law, a trust can be created through a written document known as an express trust or can be created by implication known as an implied trust. Normally, a trust can be created by any one of the following to wit: (a) A written document created by the settler and signed by both the settler and the trustees, this is often referred to as an inter vivos or "living trust"; (b) an oral declaration; (c) the will of a decedent, usually called a testamentary trust; or (d) a court order. In this instant case there exists two forms of co-ownership, that of joint tenancy which can exist at law or an equity and tenancy in common which can exist in equity only. Under the circumstances above, when Arnold died he left all his property to Wendy. 4 This means that their joint tenancy is that all the co-owners are treated as a single collective owner, and one tenant dies their interest automatically passes to the other joint tenants by survivorship. Therefore this means that a tenant's interest in the property cannot pass under a will. In view of the foregoing, the result of the deaths of Arnold, Wendy were joint tenants, therefore their equitable interest cannot pass by will or intestacy and instead pass automatically to In view of the foregoing, the result of the deaths of Arnold, Wendy were joint tenants, therefore their equitable interest cannot pass by will or intestacy and instead pass automatically to Bill as the sole surviving joint tenant. The ownership of the three children of Wendy is two-third (2/3), while Bill owns one-third (1/3) of the property therein. (b) The children of Wendy can force a sale on the property considering that Bill is a minority owner. To that effect it must be remembered that Bill is the actual occupant of the property. Under the law when a minor interest of land is coupled with actual occupation, as in this __________________________ 4 Petit v Petit (1969) 2 All ER 385; Gising v Gising (1970) 2 All ER 780 Serapio 4 instant case, that interest becomes overriding.5 No sale will happen without a written confirmation from Bill, no sale would be made. Bill's interest is the prime issue in this instance. His interest is to stay in the aforesaid property and not to sell it. The children of Wendy should therefore try to convince Bill to agree to the intended sale, otherwise all their plans will all be put to naught ______________________ 5 Land Registration Act 1925 s70(1)(g) (ii) Recent Cases: (1) Laskar v Laskar (2008) EWCA Civ 347 Appeal against finding that the appellant, though named as joint tenant of a property, had no joint or beneficial interest in the sale proceeds. Appeal allowed in part. The appellant was the daughter of the respondent. They had purchased the property under a council right to buy scheme using a mortgage and joint contributions to a deposit as the mother, a secure tenant, could not afford to buy the property on her own. After the purchase, as intended by both parties, the mother moved to live with another daughter and the property was let out. The mother paid all repairs, handled the rents and the mortgage was paid out of the income received. In 2003 there was a dispute between the parties that led the appellant to seek to realize the interest in the property and an account of the rental income received. In court, the trial judge ruled that the appellant had a 4.28% interest purely on the basis of the sum she contributed to the deposit and that no account of rent should be made. In the Court of Appeal, the appellant argued on four grounds: i) the presumption of equal shares had not been rebutted: if that argument failed then; ii) the discount under the right to buy scheme should have been apportioned equally; iii) half the liability under the mortgage should be Seraapio 5 treated as a contribution; and iv) she was entitled to a share of the rental income, especially if she is right on any of the points on beneficial ownership. In this judgment Lord Neuberger first considers whether the presumption of beneficial interest following legal interests set out in Stack v Dowden applies in this case, as argued by counsel of the appellant. He concluded that it would not be right to apply Stack to this case as the property had been found that the presumption had been rebutted on the facts. Given the absence of any discussion, Lord Neuberger fell back on the resulting trust. He concluded that: i) the discount was a contribution by the mother by way if her status as secure tenant and should not be shared; ii) that the liability under the mortgage applied to both parties and so represented a 21,500 contribution by the appellant; iii) the appellant therefore had a 33% interest in the property; and iv) there should be no account as the appellant had been initially happy with arrangements and , in any event, most of the income was swallowed up by mortgage and repairs. (2) Decision of the Commissioner Income Support R(IS) 2/93 [2002] CIS/449/1990 Part B. The research strategy I used for finding information for this research paper and documentation purposes was that I stated the topic as a question. I determined and defined the research questions equitably, then divided the question into different parts to find out what specifically is being asked. After identifying the key concepts in law that I had to verify and what were the right answers in relation to the existing jurisprudence on the cases cited. From thereon, I selected the cases and determined what process I will use in data gathering and how I will analyze the cases. Serapio 6 In doing whatever research I have to focus my research on the definitive problem given. I have to form questions about the problem or situation given and determine the exact question that is needed to be answered and basing from it the current legal jurisprudence to resolve the problem given. The basic questions that I have to answers are: What, When, Where and How. By answering these basic questions, I can go around and see the picture of the problem and the possible answers that are available. Thereafter, I started to look for books, research materials, through my notes, supreme court decisions and through law cited in the internet. I have a background in law making it easier for me to comprehend the cases cited. I did more readings in relation to background information on resolved cases in the courts. Thereafter I started to collect the data I needed in relation to the case at hand. Furthermore, I had to evaluate and analyzed the data I was gathering in relation to the case. I used guided keywords in searching for the cases and looked for materials in relation thereto by topic or subject. I started to print or write down various citations where it indicated the author or ponente of the case, titles of cases, etc. , the location, if in a library, the call number and library where it can be found. I noted circulation status. I used various periodicals, indexes and abstracts to in citations in cases. In doing all these, I cited the document sources used in the research to give proper credit to the authors of the materials used, and it allows those who are reading this work to do more research and locate the sources that I have used in my list of references. Based from all the above, I started to prepare my research paper. I am aware of plagiarism and it is best to acknowledge the representation of the work of Serapio 7 others. was aware of the requirements of the principal in pursuant to the preparation of this study. I did and answered this document from my studied and memorized jurisprudence from my education in law. I answered and prepared this document to the best of my acquired skills and knowledge. I did my research on the existing cases from the Supreme Court Doctrines and cases from published reports as noted. References Abbey, R.M. & Richards, M (2002) Albano,R.V., 2001 Ed. Rex Bookstore, Civil Law Reviewer, Albano, E.V. , 3rd Ed. , 2000 Rex Bookstore, Bar Review Guide in Civil Law, Aquino, A.D., Land Registration and Related Proceedings, 2002 Revised Edition Blackstone's Guide to theLand Registration Act 2002 Casas, R. Cruz, C., Kilayko, C., et al., 5 C Edition The Hoarse Whisperer, The Civil Law Reviewer, Chigbo, C., A Comparative Study of Land Registration, University Of Aberdeen, School of Law, UK, May 14, 2008 Cunningham, R.A., Starbuck, W.B., & Witman, D.A., The Law of Property, p1 (West 1984) Cohen, F., (1954) Rutgers LR 357, Dialogue on Private Property Cooper A., Mole, J, Barry & Nelson Lawyers, Australia, Constructive Trusts And Property Disputes, Nov. 19, 2008 Douglas, G.,Pearce, J., and Woodward, H. (2007a), Family Law 37:36, Dealing With Property Issues on Cohabitation Dowden, M. (2005), The Unfinished Revolution. London: Estates Gazette. ISBN 0728204584, Practitioner's Guide to the Land Registration Act 2002 Duhaine, L., Published Reports and Cases, June 11, 2008 updated July 1, 2008 Edgeworth, B. at al., 7th Ed.,(Butterworths, Australia, 2004):6., Property Law: Cases and Materials, Harris -Short & Miles Family Law, Oxford University Press, 2007 Hezel, F. X. ,SJ, Do We Really Need Land Registration in the Marshalls, Micronesian Counselor #52 (Sept 2004) Gray's Elements of Land Law (2nd Edition) Jurado, D.R. , 1991 8th Ed,Rex Bookstore, Comments and Jurisprudence on Succession, Land Registration Act 2002, Wikipedia, the free encycopedia Mckenzie & Phillips: Textbook on Land Law (9th "Edition) Megarry & Wade: The Law of Real Property (6th Edition) Megarry's Manual of the Law of Real Property (7th Edition) Palmer, D., Mclaughin, J., Integrated Land Administration, Institutional and Technical Challenge, Center of Property UNESCAP, Land Registration and Information Systems, United Nations and Social Commission For Asia and the Pacific,2008 Walden, C., DIFC Land Registration System Offers More Simplicity And Speed, 2008 Worldbank, Moldova Agricultural Policy Notes, Europe and Central Asia Region Environmentally and Socially ustainable Development, Final Draft, Dec. 1, 2005 Websites: Butterworth's Lexis Nexis Direct Online Halsbury's Laws Direct online Westlaw UK online www. 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