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Equity and Trusts Law Essay

The legal issue surrounding the trusts of the family home has been controversial. Most parties involved are not legally married partners or in a registered civil union. The legal rulings in the cases of Stack v Dowden (2007) and Jones v Kernott (2011) initially gave rise to significant ambiguity (Leung, 2019, p.26). Conversely, later jurisprudence produced clearer results in establishing constructive trust. The decisions of the two cases heightened the flexibility level degree in the property co-ownership situation in the UK. In these instances, the legal system commonly employed a stringent ownership-based methodology, which frequently neglected to align with the shared intentions of co-owners. The assertion that the legal system has adopted a more adaptable stance towards the joint ownership of assets, as a result of the rulings in Stack v Dowden (2007) and Kernott v Jones (2011), and that this development is commendable may be subjected to scrutiny by examining the potential ramifications and outcomes of these precedents.

 Case Summary

The case of Stack v Dowden (2007) pertains to the legal ownership of a residential property registered under common names yet lacked a clear declaration of trust. Dowden argues that the greater share of the profit from the disposable assets belonged to her. Due to shared intention, the court applied constructive trust to validate Dowden’s claim. In legal terminology, the initial measure involves refuting the assumption that equity adheres to the law by providing evidence of a mutual agreement to retain the equitable interest in a manner other than as joint tenants. This intention can be either implied or explicitly stated. In this particular case, the discrete actions of the parties constituted sufficient evidence to demonstrate the existence of a shared intention. Upon establishing the objective, the subsequent course of action was to ascertain the respective shares of the parties involved during the acquisition phase. According to Lady Hale, a comprehensive approach is necessary for the court to ascertain the distribution of shares, which entails taking into account the character of the relationship between the parties and their respective transactions involving the property. As a result of this computation, Ms Dowden was granted a fair portion of 65% in Stack (Lord et al., 2011, p.2).

The Kernott v Jones legal case involved the issue of joint ownership. Ms Jones required a statement regarding the magnitude of her portion under section 14 of the Trusts of Land and Appointment of Trustees Act 1996 (Kwek and Kwek, 2022, p.51). Ms Jones asserted that she had a greater share of the sale proceeds than the fifty per cent previously agreed upon, similar to Ms Dowden’s claim. Twelve years prior, Kernott had vacated the residence, and subsequently, Ms Jones had assumed responsibility for the mortgage payments, bills, and overall upkeep of the property. The court was presented with the inquiry of whether the alteration in the circumstances of the parties after the time of purchase should be taken into account when assessing the respective portions of the parties and the approach to be adopted in this regard. The court was requested to provide further elucidation on the ruling in Stack v Dowden, which had been subjected to significant censure, to address the concerns raised. The court upheld Stack’s position without deviating from its prior ruling. After their separation, the court determined that the parties’ conduct was sufficient to challenge the presumption, thereby enabling Ms Jones to potentially obtain a share of the property that exceeds fifty per cent. This was predicated upon the tacit agreement of shared purpose. Also, the application of comprehensive methodology by the court can assist in determining the portions of the property held by each individual. The decision derived through the methodology indicated that Ms Jones had 90% shares of the profits or total revenue.


The significance of the legal decisions in the two cases is vital for future rulings in similar or related trust cases by considering the intentions of the involved parties in property ownership. Sloan (2022, p.421) acknowledged the intricate and diverse nature of co-ownership agreements and noted that distinct considerations may apply depending on the specific circumstances. The adaptable nature of this approach has garnered positive reception from legal professionals and scholars alike, as it facilitates a more intricate examination of conflicts arising from joint ownership and has the potential to yield more equitable resolutions. It is imperative to acknowledge that the adaptable approach cannot be universally applied, and each instance must be evaluated based on its unique set of facts and circumstances. Furthermore, the verdicts rendered in these instances have partially supplanted the rigorous legal ownership methodology, which may remain suitable in certain circumstances. Although the adaptable strategy of co-ownership has garnered favourable reception from numerous individuals, it is crucial to acknowledge that it is not a universal remedy. Each scenario must still be meticulously evaluated based on its unique facts and circumstances.

The cases of Stack v Dowden and Kernott v Jones aimed to tackle these concerns by acknowledging the significance of the parties’ intentions in ascertaining property ownership. According to the ruling in Stack v Dowden, as pronounced by the House of Lords, in cases where the legal ownership of a property is held jointly, it is presumed that the parties involved are joint tenants and possess an equal entitlement to the property’s share(Lord et al., 2011, p.3). Nevertheless, this initial assertion may be challenged by proof of the parties’ intentions, which may be either explicit or deduced from their behaviour. The Supreme Court in Kernott v Jones acknowledged the possibility of situations where the ownership intentions of the parties involved may be unclear or have undergone modifications over a while. In such instances, the court may consider various elements, including the parties’ financial contributions towards the property, their intentions during the acquisition, and their conduct towards the property.

Evaluation of the Statement

Increased Flexibility

Before the decisions in Stack v Dowden and Kernott v Jones, the law in the UK tended to apply a strict legal ownership approach to the co-ownership of property. This meant that the legal title to the property was the main determinant of ownership, and the parties’ intentions were given little weight (Kirkbride, 2021, p.54). As a result, this approach often led to unfair outcomes, particularly in cases where the parties’ contributions to the property were not equal or had differing expectations about ownership. The decisions in these cases have undoubtedly introduced more flexibility in co-ownership cases. The court recognizes that the strict application of legal principles may not always reflect the parties’ true intentions and that each case should be approached on its own merits. This flexibility allows the court to consider the unique circumstances and achieve a fair outcome.

Subjectivity and Uncertainty

While flexibility is desirable, it can also lead to subjective judgments and uncertainty. The determination of beneficial interests based on factors like financial contributions and intentions can be open to interpretation, leading to potential disagreements and protracted legal battles. Clear guidelines may result in consistent decisions and certainty regarding property rights (Sloan, 2022, p.422). There needs to be more certainty in the notion of a constructive trust in the ambulatory system. The basic concept is that the shares of the parties in the property can change in the long run according to the different circumstances and motives of the people at the appropriate time. People do not know how and when a normal constructive trust will become an ambulatory constructive trust. Furthermore, it is important to recognize that the interaction between an ambulatory constructive trust and third parties can be a very complex one, particularly where there’s a charge of more than a share of one party. The adaptable methodology is predicated on subjective elements such as the parties’ intentions, behaviour, and monetary investments. The presence of subjectivity in this matter creates an opportunity for diverse interpretations, potentially resulting in varying perspectives regarding the appropriate weighting of these factors. As a result, there exists a potential for disparate judgments and divergent consequences that could be interpreted as inequitable.

Lack of Legal Certainty

The adoption of a flexible approach has the potential to compromise the level of legal certainty and predictability of outcomes. The determination of rights and obligations for parties involved in co-ownership arrangements may be challenging due to the uncertainty surrounding the determination of their interests, which may only be resolved through a court decision(Kirkbride, 2021, p.56). The absence of a definitive guarantee may potentially dissuade individuals from engaging in co-ownership arrangements or making investments in properties that are jointly owned. Despite the provision of beneficial guidance by the Court of Appeal, certain domains remain ambiguous. The lack of clarity in articulating the normative foundation for this jurisdiction is demonstrated by the presence of uncertainty. The precise determinants that lead to the attribution of an intention to share remain uncertain. Furthermore, the holistic approach to quantifying share and imputation is characterized by inherent and inevitable uncertainty, which stems from the unpredictability of the resulting outcome. It can be inferred that the court will attribute an intention even in the absence of an explicit or implicit indication to that effect. However, it is uncertain what the court will deem a suitable distribution of the equitable title.

A Common Intention Constructive Trust (CICT)

The concept of a constructive trust known as CICT arises when the parties involved share a mutual intention to distribute the beneficial interest in a property, despite the legal title being held by only one of the parties. Enabling the legal title holder to refuse the other party a beneficial interest in the property would be deemed unjust. The implementation and theoretical aspects of the CICT approach are associated with distinct challenges. According Leung (2019, p.27), the conventional approach of Resulting Trust (RT) is a more viable resolution. As an illustration, the concept of RTs entails a default position that is grounded on the presumption that a transferor did not intend to transfer a property without receiving consideration. Hence, the rust in held by transferee is deemed to hold the property in trust for the transferor. Conversely, CICTs is not comprehensive due to unclear defined initial point for the adjudication process, but focusing on different factors that may results to uncertain outcomes, which is challenging to predict. Furthermore, the established doctrine of relational contracts is widely recognized in the field of trust. Therefore, utilizing this approach to address the matter at hand does not present any theoretical complications. The CICT approach lacks the crucial element of “unconscionability” that is integral to the conventional constructive trust doctrine without any valid reason (Hayward, 2016, p.233). Moreover, the RT methodology upholds the principle of the division of powers. The imposition of limitations on judges’ discretion ensures a high degree of consistency in judicial rulings. The provision can also offer adaptability as it solely establishes a disputable assumption against transfers made without consideration. When the concept is challenged in the legal process, the contrastive trust may be invoked to help in finding solution. In the context of CICTs, the lack of explicit agreements between the involved parties forces the court to adopt comprehensive methodology in the ruling process with several factors in consideration. Hence, the decision may face lack of trust due to the unpredictability and uncertainty. The court have the authority to make absolute decision, which contravenes the existing principles. Therefore, Lady Hale did not establish a definitive differentiation between the acts of inferring and imputing a shared intention.

Potential for Unjust Outcomes

Whilst the concept of flexibility is intended to promote equity, there exists a potential for it to result in inequitable consequences. The prioritization of individual circumstances may potentially neglect wider considerations or place inequitable demands on specific co-owners. In certain instances, the financial contributions or endeavors of one party may not be duly acknowledged, leading to an inequitable allocation of benefits. The adoption of a flexible approach may potentially engender opportunities for a party to leverage the system and strategically manipulate factors such as financial contributions or intentions to their benefit. The flexible nature of the framework may result in inequitable consequences, wherein a co-owner exploits the system to acquire a greater portion of the property than their rightful share, potentially to the detriment of the other co-owner. Although the end result may not differ significantly, inferring an intention and imputing it are distinct processes. The methodologies used to make decision can never be interchanged. Moreover, the legal principles indicate that the court make decision of is responsible for determining a fair share of the parties involved in the property ownership (Greer and Pawlowski, 2015, p.514). Nonetheless, the procedure could potentially give rise to inequity in the determination of outcomes. It would pose a challenge and potentially be illogical to envision a situation where, without explicit consent, the court would deduce an unjustified mutual or collective intention. The courts serve as legal institutions, yet they also function as entities that uphold principles of fairness and equity. The emergence of challenges following the verdict in Stack v Dowden (2007) was to be expected. The ruling came due to the high population od cohabiting couples with mutual interest in personal properties. However, the couples do not make agreements on individuals of the properties (Lord et al., 2011, p.19). In addition, the significant escalation in property values has rendered the allocation of ownership based on initial financial contributions contrived and liable to generate inequity.

The current legal framework

The rulings in the aforementioned cases have provided a significant degree of elucidation to the legal framework pertaining to trusts established for residential properties owned by families. The ruling in Jones v Kernott by the Supreme Court did not introduce novel principles to the established legal framework regarding the determination of beneficial interests through a CICT. However, it did provide clarification on the underlying concepts and reaffirmed the assessment criteria established by Hale in Stack v Dowden (Penn Group, 2020). This development has provided greater lucidity with respect to the legal aspects pertaining to family home trusts. Under the existing legal framework, it is possible for parties to establish a beneficial interest in a property through various means such as an express trust, a CICT, or a RT(Hayward, 2016, p.241). Express trust cases involve the registration of the parties’ names on the property title, with quantification being determined by the clear expressions contained within the conveyance, i.e. the pre-existing legal documents. The establishment of a beneficial interest in a property subject to a RT is contingent upon a contribution to the property’s purchase price. The quantification of the respective beneficial interest is solely determined by the amount of the contribution towards the purchase price. The establishment and quantification of the beneficial interest in a CICT is predicated upon the mutual understanding of the parties involved. According to Baroness Hale’s explanation in Stack v Dowden, the absence of a person’s name on the property title implies a lack of beneficial interest in equity (Penn Group, 2020). Hence, it can be inferred that an individual possesses a beneficial interest in a property if their name is listed on the title. This phenomenon can be attributed to the utilization of the legal principle that states “equity follows the law.

The Supreme Court develops working principles that consist of the legal framework applied in quantification of the beneficial interest in under the CICT in property disputes. In situations where the property is registered in the names of multiple parties, it is assumed that they hold joint tenancy ownership of the property, which is acknowledged by both legal and equitable principles. This leads to the assumption of equitable distribution (Hayward, 2016, p.238). The assumption can be challenged through the presentation of evidence indicating that the shared intention of the parties involved was divergent, either at the time of the acquisition of the property or subsequently. The burden is on the party seeking to depart from this to prove that the parties do not intend to share equally. The determination of the shared intention being considered is derived from an objective inference drawn from the conduct and interactions among the parties involved. In a landmark ruling, the Supreme Court has determined that intention may be imputed in situations where it is not feasible to discern an explicit intention, and where it is apparent that the parties had divergent intentions at the outset or had subsequently altered their original intentions (Pawlowski, 2023, p.28). The ruling focuses on an intention that the involved parties have rightful claim to fair share of the property ownership that should be divided fairly. Thus, the Supreme Court justified that the law also imputes intention in RT cases.

In conclusion, the flexible approach taken by the two cases is a good idea that can help in solving future cases on equity and trust laws. This paper examines the legal concept of the CICT, which serves as a valuable mechanism for individuals who cohabit outside of a marriage or civil union to develop a beneficial interest in a property. The paper discussed the adoption of flexibility approach that can be used to solve co-ownership cases. Moreover, the paper included methodology that helps in establishing fair share of the property. Hence, it is crucial to acknowledge that this methodology cannot be universally applied and that every instance must be evaluated based on its unique set of facts and circumstances. Furthermore, the verdicts rendered in these instances have not entirely supplanted the rigorous legal ownership methodology, and it could remain suitable under certain circumstances. Thus, it can be noted that under the current legal framework, the assessment of advantageous interests in the context of the common intention constructive trust doctrine involves a weighing of various factors by the judiciary on a factual basis. In order to determine the shared intention, the courts will need to consider all relevant factors that arose during the parties’ interactions. The court shall ascertain that both parties possess an equitable entitlement to a segment of the property, taking into account all of their interactions pertaining to the property. The Supreme Court has created that in future trust cases, the law also attributes intent.


Greer, S. and Pawlowski, M., 2015. Imputation, Fairness and the Family Home. Conveyancer and Property Lawyer.6, pp.512-521.

Hayward, A., 2016. Common intention constructive trusts and the role of imputation in theory and practice. Conveyancer and property lawyer.80(3), pp.233-242.

Kirkbride, C., 2021. Confiscation Orders: Avoid a ‘Determination’by ‘Taking a View’: R v Hilton (Northern Ireland)[2020] UKSC 29. The Journal of Criminal Law85(1), pp.54-57.

Kwek, A. and Kwek, I., 2022. Two Roads Diverged-Taking the Road Untraveled as the Odds Stack up against Unmarried Cohabiting Couples. Sing. Comp. L. Rev., p.51.

Leung, Y.C., 2019. Rethinking the Common Intention Constructive Trusts in Stack v Dowden and Jones v Kernott-Should the Resulting Trusts Be Preferred?. ISLRev6, p.26.

Lord, W., Lady, H., Lord, C., Lord, K. and Lord, W. (2011). JUDGMENT GIVEN ON. [online] Available at:

Pawlowski, M., 2023. Joint ownership, common intention and detriment: an update. Property Law Journal, (404), pp.22-28.

Penn Group. 2020. Family Law| Case Study | Jones v Kernott. [online] Penn Group. Available at:

Sloan, B., 2022. A detrimental decision on ownership of the family home?. Journal of Social Welfare and Family Law44(3), pp.421-423.


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