The common intention constructive trust is an express trust

In Yip Yuk Kwong v Yip Chun Yin ([2015] HKEC 1312) title to property was in the names of a mother and son but (along with the father) the common intention was that the parents were the beneficial owners. The son’s name was on the title only because he was a solicitor and the firm that employed him would do the conveyancing at a concessionary rate if he were one of the buyers. The father made all the mortgage payments. The son became bankrupt in 1998 and he immediately asserted that he was only a trustee of the property. The court was satisfied that the common intention existed. It might have been better had there been a written declaration of trust but the purpose of the common intention constructive trust is precisely to allow the failure to comply with this formality to be overlooked ([18] per Deputy Judge Saunders).

Michael Lower

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