Conscience, discretion and the creation of property rights

This paper considers the utility of the concept of conscience or unconscionable conduct as a contemporary rationale for intervention in two principles applied where a person seeks to renege on an informal agreement relating to land: the principle in Rochefoucauld v Boustead; and transfers 'subject to' rights in favour of a claimant. By analysing the concept in light of our current understanding of the nature of judicial discretion and the use of general principles, it responds to arguments that unconscionability is too general a concept on which to base intervention. In doing so, it considers the nature of the discretion that is actually in issue when the court intervenes through conscience in these principles. However, the paper questions the use of constructive trusts as a response to unconscionability. It argues that there is a need, in limited circumstances, to separate the finding of unconscionability from the imposition of a constructive trust. In these limited circumstances, once unconscionability is found, the courts should have a discretion as to the remedy, modelled on that developed in the context of proprietary estoppel. The message underlying this paper is that many of the concerns expressed about unconscionability that have led to suggestions of alternative rationales for intervention can in fact be addressed whilst retaining an unconscionability analysis. Unconscionability remains a preferable rationale for intervention as it provides a common thread that links apparently separate principles and can assist our understanding of their scope.

Interpreting "D.I.Y." documents:severance, release, trusts, certainty, vesting and undue influence

Comments on the Chancery Division decision in Wallbank v Price on whether a home-made ("DIY") document signed by a wife and purporting to revoke her rights as a beneficial joint tenant in the matrimonial home, which was acquired under the right-to-buy scheme, should be set aside for duress or undue influence. Details the court's analysis of the principles supporting a successful claim of undue influence, the nature of the DIY document, its meaning and its effect. Considers possible reasons for the parties' use of the document. Cases Wallbank v Price (2007) EWHC 3001 (Ch); (2008) 2 FLR 501 (Ch D (Birmingham)) : Royal Bank of Scotland Plc v Etridge (No.2) (2001) UKHL 44; (2002) 2 AC 773 (HL) : Paul v Constance (1977) 1 WLR 527 (CA (Civ Div)) Statutes Housing Act 1985

Certainty of subject matter in the law of trusts

This piece argued that the accepted orthodoxy concerning the requirement that each individual piece of property is individually segregated for a valid trust to exist is unsupported by the case law, and that there is nothing wrong in principle or theory with a trust that exists for unsegregated property.

Rescission and substitute property:Bainbridge v Bainbridge [2016] EWHC 898 (Ch)

One of the unresolved issues concerning equity’s jurisdiction to set aside dispositions for mistake is the nature of the proprietary consequences that ensue. The decision in Bainbridge v Bainbridge sheds further light on this important issue, but also illustrates that some important aspects concerning the application of rescission needs further clarification. The key issue concerned the rescission of a trust, where parts of the land had been sold by the trustees who had used the proceeds of sale to buy two new plots of land. Part of the reasoning used by Master Matthews relied upon authorities, developed in the context of fraudulently induced transfers of money, which requires careful consideration of the relationship between the principle in Pitt v Holt and unjust enrichment.

Property cash flow studies : focusing on model consistency and data accuracy

The high degree of variability and inconsistency in cash flow study usage by property professionals demands improvement in knowledge and processes. Until recently limited research was being undertaken on the use of cash flow studies in property valuations but the growing acceptance of this approach for major investment valuations has resulted in renewed interest in this topic. Studies on valuation variations identify data accuracy, model consistency and bias as major concerns. In cash flow studies there are practical problems with the input data and the consistency of the models. This study will refer to the recent literature and identify the major factors in model inconsistency and data selection. A detailed case study will be used to examine the effects of changes in structure and inputs. The key variable inputs will be identified and proposals developed to improve the selection process for these key variables. The variables will be selected with the aid of sensitivity studies and alternative ways of quantifying the key variables explained. The paper recommends, with reservations, the use of probability profiles of the variables and the incorporation of this data in simulation exercises. The use of Monte Carlo simulation is demonstrated and the factors influencing the structure of the probability distributions of the key variables are outline. This study relates to ongoing research into functional performance of commercial property within an Australian Cooperative Research Centre.

The future of office property

The following paper considers the question, where to office property? In doing so, it focuses, in the first instance, on identifying and describing a selection of key forces for change present within the contemporary operating environment in which office property functions. Given the increasingly complex, dynamic and multi-faceted character of this environment, the paper seeks to identify only the primary forces for change, within the context of the future of office property. These core drivers of change have, for the purposes of this discussion, been characterised as including a range of economic, demographic and socio-cultural factors, together with developments in information and communication technology. Having established this foundation, the paper proceeds to consider the manner in which these forces may, in the future, be manifested within the office property market. Comment is offered regarding the potential future implications of these forces for change together with their likely influence on the nature and management of the physical asset itself. Whilst no explicit time horizon has been envisioned in the preparation of this paper particular attention has been accorded short to medium term trends, that is, those likely to emerge in the office property marketplace over the coming two decades. Further, the paper considers the question posed, in respect of the future of office property, in the context of developed western nations. The degree of commonality seen in these mature markets is such that generalisations may more appropriately and robustly be applied. Whilst some of the comments offered with respect to the target market may find application in other arenas, it is beyond the scope of this paper to explicitly consider highly heterogeneous markets. Given also the wide scope of this paper key drivers for change and their likely implications for the commercial office property market are identified at a global level (within the above established parameters). Accordingly, the focus is necessarily such that it serves to reflect overarching directions at a universal level (with the effect being that direct applicability to individual markets - when viewed in isolation on a geographic or property type specific basis – may not be fitting in all instances)

The function of property in creating an effective legal regime for trade in environmental offsets

Market-based environmental regulation is becoming increasingly common within international and national frameworks. Environmental offset and trading regimes are part of the market-based instrument revolution. This paper proposes that environmental market mechanisms could be used to introduce an ethic of land holder responsibility. In order for market based regimes to attract sufficient levels of stakeholder engagement, participants within such scheme require an incentive to participate and furthermore need to feel a sense of security about investing in such processes. A sense of security is often associated with property based interests. This paper explores the property related issues connected with environmental offset and trading scheme initiatives. Relevant property-related considerations include land tenure considerations, public versus private management of land choices, characteristics and powers associated with property interests, theories defining property and the recognition of legal proprietal interests. The Biodiversity Banking Scheme in New South Wales is then examined as a case study followed by a critique on the role of environmental markets.

Bwembya Chikolwa quoted by Mike Taylor for Money Management 7th September 2009, Thaw for listed property

Australian property bond markets are starting to improve, but don’t expect a return to the buoyant days of the past any time soon.