The Difference Between Common Intention Constructive Trusts and Proprietary Estoppel Has Been Described as ‘Illusory’ (Hayton). Do You Agree with This Statement? Consider How the Case Law Has Developed and Give Reasons for Your Answer.
The difference between common intention constructive trusts and proprietary estoppel has been described as ‘illusory’ (Hayton). Do you agree with this statement? Consider how the case law has developed and give reasons for your answer.
In his article ‘Equitable Rights of Cohabitees’ Hayton suggested that the distinction between common intention constructive trusts and proprietary estoppel has, over time, come to be but illusory and goes on further to propose that since the general direction of the development of the law has been to embrace the principle of preventing and remedying unconscionable conduct regardless of whether the claim brought before them was originally brought under the concept of a constructive trust or proprietary estoppel, the distinction between the two legal tools should be altogether abolished. The scholar suggests that this would further promote the equitable principle of remedying unconscionable conduct. As Lord Browne-Wilkinson put it, ‘the two principles have been developed separately without cross-fertilization between them: but they rest on the same foundation and have on all the matters reached the same conclusions”.
However, while there undeniably are many close similarities in the nature of both common intention constructive trusts and the doctrine of proprietary estoppel, particularly in terms of the circumstances under which they are claimed, the remedies the courts are able to award under each type of claim, and the evidence courts have been willing to accept in order for each type of claim to be affirmed, numerous distinctions nevertheless exist and in practice case law has not always supported Browne-Wilkinson’s assertion.
Before the similarities and differences between the various legal elements of common intention constructive trusts and proprietary estoppel can be closely analysed, it is useful to provide definitions for both of these terms. Common intention constructive trusts have been defined as trusts created by
In his article ‘Equitable Rights of Cohabitees’ Hayton suggested that the distinction between common intention constructive trusts and proprietary estoppel has, over time, come to be but illusory and goes on further to propose that since the general direction of the development of the law has been to embrace the principle of preventing and remedying unconscionable conduct regardless of whether the claim brought before them was originally brought under the concept of a constructive trust or proprietary estoppel, the distinction between the two legal tools should be altogether abolished. The scholar suggests that this would further promote the equitable principle of remedying unconscionable conduct. As Lord Browne-Wilkinson put it, ‘the two principles have been developed separately without cross-fertilization between them: but they rest on the same foundation and have on all the matters reached the same conclusions”.
However, while there undeniably are many close similarities in the nature of both common intention constructive trusts and the doctrine of proprietary estoppel, particularly in terms of the circumstances under which they are claimed, the remedies the courts are able to award under each type of claim, and the evidence courts have been willing to accept in order for each type of claim to be affirmed, numerous distinctions nevertheless exist and in practice case law has not always supported Browne-Wilkinson’s assertion.
Before the similarities and differences between the various legal elements of common intention constructive trusts and proprietary estoppel can be closely analysed, it is useful to provide definitions for both of these terms. Common intention constructive trusts have been defined as trusts created by