Common intention constructive trust? Applying Jones v Kernott.

Geary v Rankine ([2012] EWCA Civ 555, CA (Eng)) concerned a claim by G to a beneficial interest under a common intention constructive trust of property initially bought as a commercial investment, title to which was in R’s name alone. R had supplied the entire purchase price. The Court of Appeal summarised its understanding of the relevant principles after Jones v Kernott. On the primary question as to whether there is a trust or not, Lewison L.J. said:

‘Mrs Geary has the burden of establishing some sort of implied trust; normally what is now termed a “common intention” constructive trust. The burden is all the more difficult to discharge where, as here, the property was bought as an investment rather than as a home. The search is to ascertain the parties’ actual shared intentions, whether express or to be inferred from their conduct.’ ([18]) (emphasis added)

There are two exceptions to this exclusive focus on actual intention. First, where there is a presumed resulting trust (but R had supplied the entire purchase price so there was no such trust in this case). This seems to suggest that the presumed resulting trust is in some way disconnected from actual intention. Second, the court can impute an intention once the existence of a trust has been proved but where the court cannot discern any actual agreement as to how the beneficial interests are to be shared. The quantification of the beneficial interests can rely on an imputed intention but imputation is not relevant to the question as to whether or not a common intention constructive trust had come into existence ([19]).

Lewison LJ, dealing with the question as to whether or not a common intention constructive trust had come into existence said:

‘actual intention may have been expressly manifested, or may be inferred from conduct; but actual intention it remains.’ (at [21]).

Here there was no evidence of a common intention (either formed at the time of acquisition or subsequently) that G was to have a beneficial interest at all.

Michael Lower

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One Response to “Common intention constructive trust? Applying Jones v Kernott.”

  1. To, Vivian M.Y. Says:

    Land law

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