Common intention constructive trust: the intention to create the trust cannot be imputed

In Capehorn v Harris ([2015] EWCA Civ 955, CA (Eng)) C and H had been unmarried cohabitees but the relationship had come to an end. The question was whether H had a beneficial interest in property which was in C’s sole name. The first instance judge found that there was no actual agreement to this effect but that one should be imputed to the parties.

The Court of Appeal overturned this decision. Imputation is relevant only to the question of quantification and not to the prior question in sole name cases as to whether or not there is a common intention constructive trust ([16] and [17] per Sales LJ). As there was no actual agreement, there was no common intention constructive trust.

Michael Lower

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