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Chapter

Cover Equity & Trusts

9. Informal Arrangements Relating to Land  

Paul S Davies and Graham Virgo

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter refers to informal arrangements relating to land and related transactions that fail to comply with statutory formality requirements. Through a number of equitable mechanisms, these transactions may be rendered effective. It must be noted that trusts of land are only enforceable when they are evidenced by signed writing and meet certain formality requirements relating to the disposition of land. Verbal contracts for the sale of land are, therefore, considered void. Equity may have a role to play in rendering a transaction effective where parties have entered into informal arrangements relating to property, and this has been recognized explicitly by statute. Trusts of land and contracts for the sale of land play a significant role in validating informal arrangements relating to property, as does the doctrine of proprietary estoppel.

Chapter

Cover Complete Equity and Trusts

4. The formality requirements and incompletely constituted trusts  

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter, which is on formality requirements and incompletely constituted trusts, discusses the different formality requirements for different types of property. It states that transactions in land require writing. It also looks at the difference between a declaration of trust and a transfer of property and mentions that the disposition of an equitable interest must be in writing; that contracts to transfer property to trustees can only be enforced by the parties to the contract, not the beneficiaries (incompletely constituted trusts); and that marriage settlements are an exception in that beneficiaries within the marriage consideration may enforce a contract to transfer property to the trustees.

Chapter

Cover Equity & Trusts

4. Creation of Express Trusts  

Paul S Davies and Graham Virgo

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses the formality requirements that must be met in the creation of express trusts. As an example, a declaration of an express trust over land is presented here, which formally requires signed writing. Trusts created by a will also need to satisfy formality requirements and must be constituted by title to the trust property being vested in the trustee. A trust can be constituted using two mutually exclusive methods: by declaration of oneself as a trustee or by transfer of property to trustees. Neither half-secret nor fully secret trusts will comply with statutory formality requirements but, subject to the fulfilment of certain conditions, they will be regarded as valid to ensure that the statutory formalities are not used as an instrument of fraud.

Chapter

Cover Equity & Trusts

7. Constructive Trusts  

Paul S Davies and Graham Virgo

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter focuses on constructive trusts, which arise by operation of law without regard to the intentions of the parties. They are triggered by a defendant’s unconscionable conduct; however, in some cases, a constructive trust will be recognized even though the defendant has not acted unconscionably, such as the constructive trust that arises once a contract to sell land has been made. A remedial constructive trust is recognized by some jurisdictions, whereby equitable proprietary rights arise through the exercise of judicial discretion, but such a trust is not recognized in England and Wales. As with express trusts, title over particular property that is held on constructive trust is split between trustees and beneficiaries, but a constructive trustee is not subject to the same duties as an express trustee.

Chapter

Cover Pearce & Stevens' Trusts and Equitable Obligations

12. Determining interests in the family home through trusts  

This chapter considers the current state of the law in the use of express or implied trusts (constructive and resulting) to give couples interests in the home or to determine the extent of those interests. Express trusts are rarely used, and the reasons for this are explored. Similarly, the residual role that resulting trusts now play is considered. The dominant trust employed is the common intention constructive trust and the majority of the chapter considers the application of these rules, both to the acquisition of an interest in the family home where only one cohabitant is on the legal title to the home, and to the quantification of interests, either following the acquisition of an interest or where there is an alleged departure from the presumption of equal ownership. It considers whether the current approach requires a different approach to both types of cases, and also details the real-world significance of the creation of an interest in the home, including their impact on transactions relating to land (in outline).

Chapter

Cover Pearce & Stevens' Trusts and Equitable Obligations

14. Proprietary estoppel  

This chapter focuses on proprietary estoppel. Proprietary estoppel can confer proprietary rights despite the lack of a formal grant or transfer. It can be used in three situations: where a person mistakenly believes that they have an existing right in land and the real owner acquiesces in this belief, where a person is encouraged by the owner to believe that they have an existing right in land, and where a person is led by the owner to believe that they will have a right in the future if they act in a particular way. It has much in common with common intention constructive trusts, but is capable of operating in different circumstances. Most cases involve rights in land, but the doctrine is not confined to this kind of property.

Chapter

Cover Trusts & Equity

8. Constructive trusts and informal trusts of land  

Constructive trusts differ from express trusts in many ways. Whereas an express trust gives effect to an owner’s intention to transfer a beneficial interest in his property, a constructive trust may be imposed directly contrary to the owner’s intentions. Another distinction between an express trust and a constructive trust is that the former is unenforceable unless it is evidenced in writing, whereas the latter is created and operates without formality. However, express and constructive trusts, by their very nature as trusts, have a number of similar features, the most fundamental being the presence of ascertainable property, in which a beneficiary has a proprietary interest for which the trustee is personally liable to account. This chapter examines the nature, operation, and variety of constructive trusts, and also considers one special category of constructive trusts: informal trusts of land. In addition, it discusses commonwealth jurisdictions and proprietary estoppel.

Chapter

Cover An Introduction to the Law of Trusts

5. Formalities  

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter looks at the degree of formality that the law demands in the creation of trusts and in dealings with beneficial interests. No formalities are required so far as making trusts is concerned. But there are two exceptions to this. First, when the trust is to come into effect on the settlor's death, it will be made through the medium of his will: and wills must be in writing, signed by the testator, and attested by two witnesses. Secondly, where the subject matter of the trust is land, then even if it is to come into effect in the settlor's lifetime, it must be put in writing and signed by the settlor. There is a further formality rule in the trusts area, which concerns not the making of them but dispositions of the beneficial interests existing under them; in particular, where a beneficiary transfers his interest to someone else. Such a disposition must be made in writing, and signed by the person making it. The chapter assesses these rules, both to understand them and to consider their sustainability.

Chapter

Cover Trusts & Equity

8. Constructive trusts and informal trusts of land  

Constructive trusts differ from express trusts in many ways. Whereas an express trust gives effect to an owner’s intention to transfer a beneficial interest in his property, a constructive trust may be imposed directly contrary to the owner’s intentions. Another distinction between an express trust and a constructive trust is that the former is unenforceable unless it is evidenced in writing, whereas the latter is created and operates without formality. However, express and constructive trusts, by their very nature as trusts, have a number of similar features, the most fundamental being the presence of ascertainable property, in which a beneficiary has a proprietary interest for which the trustee is personally liable to account. This chapter examines the nature, operation, and variety of constructive trusts, and also considers one special category of constructive trusts: informal trusts of land. In addition, it discusses commonwealth jurisdictions and proprietary estoppel.

Chapter

Cover Pearce & Stevens' Trusts and Equitable Obligations

7. Formalities  

This chapter looks at situations where the creation of a valid trust requires special formalities. Firstly, it considers inter vivos declarations of trust, such as trusts of land and personal property, as well as sub-trusts. The chapter then discusses dispositions of subsisting equitable interests. Unlike the declaration of sub-trusts, a different formality requirement applies to dispositions of existing equitable interests, which emphasizes that it must be made in writing. There are, however, some exceptions to this rule, particularly in the context of taxation. In addition, this chapter turns to resulting and constructive trusts and declarations of trusts by will.

Chapter

Cover The Principles of Equity & Trusts

5. Formalities  

This chapter examines the processes for creating an express trust, which involves two elements. The first involves possible formality requirements relating to the creation of the trust itself, particularly involving trusts of land and testamentary trusts. It also considers how a trust may be valid despite failure to satisfy these requirements, notably where a statute is being used as an instrument of fraud or where a secret trust is recognized. The second element involves the formality requirements which need to be satisfied to ensure that title to property is vested in the trustees, so that the trust is constituted. Constitution of the trust is considered where a settlor declares themself as a trustee and also where another party is declared as a trustee. The chapter also examines when Equity may intervene where a trust has not been properly constituted or where a gift has not been validly transferred to a donee.

Chapter

Cover Equity & Trusts Law Directions

10. Trustee appointments  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. No more than four trustees can be appointed in a private trust of land. The trustees will hold the legal title as joint tenants; if any of them dies, the legal title remains vested in the surviving trustees by ‘right of survivorship’. This chapter examines trustee appointments, focusing on cases where a trustee dies or for some other reason ceases to act, and also considers the persons able to appoint trustees and the persons able to act as trustees. The chapter provides an overview of the Trustee Act 1925, and the Trusts of Land and Appointment of Trustees Act 1996. It also considers the principle that a trust does not fail for want of a trustee, how a trustee may disclaim the trust and the modes by which a trustee might retire, or be removed, from the trust. In addition, the chapter looks at the actions of the trustee upon appointment, liability after retirement from the trust, removal under ss 36(1) and 41 of the Trustee Act 1925 and removal of the trustee under the court’s inherent jurisdiction.