Detrimental reliance still an essential ingredient of common intention constructive trust (Hudson v Hathway)

Article summary

Family analysis: Reversing the High Court’s controversial decision made in the case’s first appeal, the Court of Appeal’s judgment makes clear that a successful application under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996) for declaratory relief under common intention constructive trust principles must establish both the common intention itself, and reliance on the same by the claimant to their detriment; equity will not assist a volunteer. For the avoidance of doubt, such reliance is still a requirement where the common intention takes the form of an express agreement and relates to an increased share in the equity post-acquisition, as it did in the case. Although Lord Justice Lewison ultimately dismissed the appeal (the same outcome as the first appeal before Mr Justice Kerr), in doing so, he took pains to dismantle Kerr J’s incorrect reasoning that detrimental reliance is not a requirement in joint names cases where there is an express agreement. He...