Weekly review: 26th – 30th November 2012

Common intention constructive trust

A common intention constructive trust only arises when there is an actual common intention to share beneficial ownership in a way not expressed by the legal title. When it comes to quantification of the parties’ respective interests, an intention can be imputed where the court cannot discern an actual intention (Geary v Rankine).

Covenant: building scheme

The benefit and burden of restrictive covenants can pass by virtue of a building scheme affecting an identified estate where the intention is clearly expressed by all purchasers (Elliston v Reacher).

Covenants: waiver

It is important to distinguish between a waiver that affects only past breaches and a general waiver of a covenant. Especially clear words are needed to express an intention to grant a general waiver (Real Honest Investment Ltd v Attorney-General
and Expressluck Development Ltd v Secretary for Justice).

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