equitable property interests

equitable property interests

1. forms

   • express equitable interest
     • most common; EI is pursueant to the beneficial title that arises under the express trust
     • settlor= person who creates tust
     • trustee; 3rd party; property legally transferred too
     • beneficiary; whome trustee owes responsibility in looking after prop
     • EI may arise where settlor intends to create a trust and transfers title to trustee for benefit of defined beneficiaries
     • preconditions
       • clearly identifiable and in existance
       • 3rd party to be trustee, settlor must have complied with all formality reqs to transfer
       • clear intention that legal titile held by transferee on trust for beneficiary
       • no uncertainty
     • nature of express trust; westdeautsche landesbank girozentrale v islington London borough council
     • relevant principles of trust law; DKLR holding co (no 2) pty ltd v commissioner of stamp duties
     • formalities
       • express trust by transfer
         • must satisfy legal or equitable requirements for assigning the trust prop AND must sat formality requirements for the creation of an equitable beneficial interest in land and or personal property
       • ecpress trust by declaration
         • arises whenever the settlor declares that either themselves or a third party is to hold the property on trust for the benefit of express beneficaries
           • declares themselves, no need to comkply as usally already vested.
             • formality requirements for creating legal interest in land; s52
     • statutes of frauds
       • applies to all land interests, part performance is exception
       • to prevent hidden oral transactions creating equitable interests over land and ensure trustees can ascertain identity of beneficiaries; vandervell v inland revenue coommissioner
       • 53 PLA
         • 53(2); applies to creation of all trusts and other express equitable interests but not to resulting or constructive trusts
         • 53(1)(a),(c); contract for sale/disposition of any interest in land is unenforceable unless sufficient written memorandum signed by party to be charged with it
         • s 53(1)(b); when express trust is created by way of dec rather than transfer, trust must be 'manifested and proven' by evidence in writing
         • s 53(1)(c); unlike a which is restricted to IN LAND c is not, applies to trans with pre existing equitable interests. Any disposition of subletting equitable interest must be in writing and signed by the transfereor or his/her agent
           • dispostition; given wide meaning include transfer, assignment or direction (grey v inland revenue commissioner)
       • p 441-43
     • insruments act
       • specifically to sale or disposition of and
       • applies specifically to sale or disposition of land
       • requires the sale or disposition to be in writin, and signed by party to be charged
       • reinforces the statute of fraud provisions in section 53(1)
       • can't have oral contract

2. implied equitable interests

   • resulting trusts
     • may infer equitable interest in circs where intent can be implied from facts
     • confer enforceable equitable title upon beneficiaries
     • arise to protect transfer of prop where transferor did not intend to benefit the recipient
     • cateogories
       • failed express trust
         • Settlor intended express trust but trust invalid; imply a resulting trust express trust failed but does not make intention for trustee to gain full ownership
       • voluntary transfer trust; specific purpose loan
         • may arise where specific purpose contract entered into and purpose fails- where property has been transferred , without any consideration having been provided to a 3rd party stranger
           • • Held that where a borrower enters into a loan contract to borrow money for a specific purpose and that purpose provides a benefit to an identifiable beneficiary, the loan money will be held under an express trust until the purpose is satisfied (Barclays Bank v Quistclose Investments Ltd).
       • purchase money trusts
         • prop purchased, title been placed in name of 3rd party stranger
         • contribution to is not reflected in the legal title/ownership of the property: may infer that legal title owner holds portion of property that reflects contribution on resulting trust for contributor.
         • rebutted
           • established that the contributing party intended to advance the property to the legal titleholder.
           • intended to make the contribution as a gift.
             • man makes contributions or where property is transferred by a fiancé to his fiancée (Jenkins v Wynen)
             • man makes contributions or where property is transferred by a fiancé to his fiancée (Jenkins vWynen);Trustees of the Property of Cummins v Cummins
             • father contributes or makes a contribution to a property for a child (Charles Marshall Pty Ltd v Grimsley) or where a mother makes a contribution for her child (Nelson v Nelson

3. the equitable lien

   • equitable securities
     • security a vendor acquires to the unpaid purchase moneys in a land contract
     • sometimes possessory eg mechanic
   • equitable charge
     • when property is expressly or constructively made liable to the discharge of a debt or some other obligation

4. imposed equitable interests

   • constructive trusts
     • construed by courts irrespective of intention of parties; circumstances demand it
       • 'the formula which the conscience of equity finds expression' beatty v guggemheim exploration co
     • two forms
       • remedial
         • generally from court date
       • institutional
         • when circumstance created it to occur; westdeutsche

5. mere equity; personal interest

   • latec investments ltd v hote lterrigal pty ltd
   • ruthol pty ltd v Mills

6. equity of ratification

   • as a result of fraud or misconduct of some description to have transaction rectified

7. equitable interests ; doctrine of part performance

   • acts unequivocally referable to an oral agreement; equity will specifically enforce the agreement; maddison v alderson/McBride v sandland
   • complete oral agreement not enforceable at common law/equity unless part performance; maddison v alderson
     • to establish
       • acts of performance unequivically relate to agreement alledged
       • acts relied upon must have been done on the faith of the agreement and must have resulted in a change of position with respect to the subect mmatter of the contract such that person would be unfairly prejudiced if theother party were to take advantage of the absence of any writen statement

8. ineffective legal assignment

   • via imposition of constuctive trust
   • d example = morgages