Mindmap
Presumed RT
Inhalt der Mindmap
Presumed RT
Where C has transferred property to D OR paid purchase price of property that was acquired by D
- PRESUMED C intended D to HOLD property on trust
- Justification - Equity assumes people don't act altruistically
- they act with a degree of self interest and expectation of some return
- they wish to have a beneficial interest in the property received by D.
- they act with a degree of self interest and expectation of some return
- presumption can be rebutted by the transferee
- show that the transferor did intend the transferee to take the property beneficially.
- PRESUMPTION OF ADVANCEMENT
- relationship between the transferor and transferee - transferor bears responsibility for transferee - gift - likely to have been intended
- can be rebutted by transferor proving no gift was intended
- ONUS of PROOF
- Where transferor has shown presumption of RT by est. a transfer of property/contribution to purchase price where transferee has shown no consideration
- burden - placed on transferee to show gift was intended
- with presumption of advancement
- burden - on the transferor to show he intended to have a ben. interest in property
- Where transferor has shown presumption of RT by est. a transfer of property/contribution to purchase price where transferee has shown no consideration
- PRESUMPTION OF ADVANCEMENT
- show that the transferor did intend the transferee to take the property beneficially.
- Justification - Equity assumes people don't act altruistically
- PRESUMED C intended D to HOLD property on trust
VOLUNTARY TRANSFER OF PROPERTY
- Where C transfer property to D and transfer is for NO consideration - if the property is presumed to be held on RT for the C depends on nature of property
- LAND
- Where C voluntarily transfers land to D - assumed there is no presumption of RT - s60(3) LPA
- reminder to conveyancers that a RT Twont be implied as a conveyance of property doesnt expressly state that the property is for use/benefit of grantee
- Provision - has no effect on whether or not a RT of land will be presumed where transferor voluntarily conveys to transferee
- Where C voluntarily transfers land to D - assumed there is no presumption of RT - s60(3) LPA
- PERSONALTY
- RT - presumed where personalty (share/money) is voluntarily transferred to D
- 3 seperate principles that need to be considered - recognised in AORSO v COUTTS
- 1) If C shows he intended D to take proeprty beneficially - end of matter
- BUT If C intends property to be held by D on trust for C - property - held on an ET and presumption of RT - irrelevant
- 2) If C doesnt show he intended D to recieve the property beneficially - there will be a presumped RT in favour of C
- UNLESS - relationship between C & D is that presumption of advancement is used
- 3) where presumption of intention to declare a trust is used - D can seek to rebut it by citing evidence of relevant facts and circumstances to show that C didnt intend the property to be held on interest for him and it was meant to be a gift
- 1) If C shows he intended D to take proeprty beneficially - end of matter
- 3 seperate principles that need to be considered - recognised in AORSO v COUTTS
- RT - presumed where personalty (share/money) is voluntarily transferred to D
- LAND
- Where C transfer property to D and transfer is for NO consideration - if the property is presumed to be held on RT for the C depends on nature of property
PURCHASE IN NAME OF ANOTHER
- Where C buys property in name of D- presumed that the property will be held on RT for the claimant
- Where C has contributed to purchase price thats in D's name - property presumped to be hled on RT in shares proprortionate to contribution
- presumption can be rebutted by est. that
- presumption of adcancement applies due to relationship between C & D
- by D showing evidence that C itnended D to recieve property outright - intended to be gift
- evidence that is required depends on circumstances of case
- sometimes will be difficult to rebut
- sometimes relationship between parties suggests a gift is likely
- Fowkes v Pascoe
- evidence shown that a woman had purchased stock in names of herself & grandson
- evidence by grandson that this had been done as a gift - admissable
- Fowkes v Pascoe
- evidence that is required depends on circumstances of case
- Where C buys property in name of D- presumed that the property will be held on RT for the claimant
PRESUMPTION OF ADVANCEMENT
- Where transferor of property/contributor of purchase price is husband, father (MALE) -presumed gift is intended
- presumption wont be applied where
- property has been transferred to a mistress
- wife purchases property for her husband
- property has been transferred into joint names of H & W
- presumption can be rebutted if theres evidence that gift was intended
- decleration must have been made before, during or immediately after time property was transferred/purchased & form part of transaction
- decleration made by party after transaction which didnt form part of transaction - can still be admitted to rebut
- ONLY IF it operates against interest of the person making the declaration
- its become difficult to defend in general application - discriminatory effect between men and women
- was abolished by s199 of Equality Act 2010 - but provision isnt in force yet
- Warren v Gurney
- Father purchases house and conveyed it to one of his daughters
- presumption - rebutted by decleration made by father that gift was itnended as he had retained title deeds to property
- McGrath v Wallis
- family home conveyed in name of son as father was unemployed - only son was accepted as mortgagor
- at time of transfer - declaration of trust had been drafted indicated that father was to have 80% beneficial interst and son 20%
- enough to rebut presumption
- presumption wont be applied where
- Where transferor of property/contributor of purchase price is husband, father (MALE) -presumed gift is intended
Presumption & Illegal transfers
- common form - transfer of property to D to hide it from creditors/ex spouse or tax evasion/benefit fraud
- maxim - HE WHO COMES TO EQUITY MUST DO SO WITH CLEAN HANDS
- equity wont assist a person who has acted for illegal purpose
- but if C isnt required to rely on illegal conduct - can still est. RT
- public policy - cant plead an illegal purpose
- doesnt stop presumption of RT of advancement - means that party against who presumption applies wont be able to assert his illegal purpose to rebut presumption
- Collier v Collier
- H transfers property to W to hide it from his creditors - presumed he intended to make gift of property to her due to presumption of advancement
- H cant rebut presumption by citing evidence that his purpose was to hide assets from creditors - illegal purpose
- if W had transferred property to H to hide it from creditors - presumptio of RT will apply - wont need to rely on her illegality to est. presumption
- Her H might want to rebut presumption by showing transaction was intended to be illegal purpose - but he cant plead this
- Collier v Collier
- EXCEPTION
- Tribe v Tribe
- evidence of an illegal purpose is admissible if the illegal purpose is never carried out.
- father illegally transferred shares to his so to hide them from his creditors.
- once threat had passed - father asked son to return shares. son refused - argued presump. of advancment and father was unable to rebut by pleading his illegal purpose
- HELD: As creditors hadnt been aware of transfer of shares - none of them had been decieved - illegal purpose hadnt been carried into effect
- father could be seen to not have done anything illegal - could rely on purpose to rebut presumption
- Tribe v Tribe
- doesnt stop presumption of RT of advancement - means that party against who presumption applies wont be able to assert his illegal purpose to rebut presumption
- presumption of RT will apply despite cliamants involvement in illegal transfer
- Tinsley v Milligan
- lesbian lovers - both contributed to purchase of house
- but it was registered in sole name of T on understanding they would have joint beneficial interest
- M was seen as a lodger so she could make fraudulent claims for housing benefit - both parties participated in fraud and both benefitted
- after relationship ended - T said she had sole ownership - M said she had beneficial itnerest and due to nature of relationship RT can be presumed
- T said M couldnt ask court to enforce trust in her favour - due to her illegal conduct
- HELD: M succeeded as she didnt need to rely on illegal purposes to do this
- only way T could rebut this - showing M intended her to have sole title to commit her fraud - T couldnt as she would have pleaded illegal transfer
- Lowson v Combes
- L and C both contributed to the purchase price of a house
- house was conveyed into the name of C alone because they did not want to L's wife to have a claim over it in divorce - illegal
- L was allowed a B interest in the house because he had contributed to this purchase price; he didn't need to rely on his illegal purpose.
- Tinsley v Milligan
- equity wont assist a person who has acted for illegal purpose
Informationen
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- uni Equity Mindmap am Presumed RT, erstellt von r.a.mcparlin am 24/04/2015.
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- r.a.mcparlin
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