Constructive trust and proprietary estoppel: how specific must the assurance be?

It is possible for a common intention constructive trust to arise after the property has been acquired and this can be inferred from express agreement or conduct. It needs to be clear, though, that such a common intention has been formed. Contributions made in the absence of such a common intention count for nothing. Proprietary estoppel, too, depends on an assurance that some kind of interest in property will pass (though, clearly, that interest need not be quantified).

In James v Thomas ([2007] EWCA Civ 1212 CA (Eng)) Mr Thomas owned a property. He met Ms James and they cohabited. The property was their family home for many years. Ms James made financial contributions to mortgage instalments and did heavy building work both at the home and as an employee / partner in Mr James construction business. Mr Thomas refused to agree to Ms James’ suggestions that he sell the house and buy another joint home. He assured Ms James that her efforts would benefit them both, He told her that she would be provided for.

The English Court of Appeal held that there was no evidence of a common intention that Ms James should have any proprietary interest in the house. The undeniable fact that she made very significant contributions did not, therefore, result in her having any beneficial interest under a constructive trust. Mr Thomas’ assurances did not amount to an assurance that she would have any interest in the property. So the proprietary estoppel claim failed too.

Michael Lower

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