Establishing A Beneficial Interest In Property

Many non-married couples may decide to purchase a property together and register both their names as legal owners on the title deeds.

If they are contributing different amounts to the purchase price they may also want to record their contributions and therefore the proportions of the property they own in a declaration of trust. That way when the property is sold they will get a respective share of the net proceeds.

A declaration of trust is also a useful tool to protect one partner's beneficial interest in the property, if for whatever reason they are not registered as a joint legal owner.

However, if none of these steps have been taken then the non-legal owner may look to establish a beneficial interest in the property in the following ways:

1. To establish a common intention constructive trust

   There must have been a common intention to share ownership

   This is to say that there was a common intention for one of them as legal owner to hold the land on trust for the both of them. This can only be achieved by evidence of the parties' actual intentions, express or inferred, ascertained objectively (Thompson v Hurst). In a straightforward case a declaration of trust would be express evidence of the parties'...