Rehabilitating the common intention trust

Position of the common intention principle in Australia - the principle should continue to exist - evidentiary difficulties means that the principle is infrequently invoked - claimants who cannot produce sufficient evidence of a common intention may be entitled to relief via equitable estoppel or the joint endeavour principle - the doctrinal foundation of the common intention trust - alternative rationales for the common intention trust.

Dislodgement of commercial property public debt markets : the case of U.S. and Australia

The paper investigates if there are any discernible trends in the U.S. and Australian commercial property public debt markets with the onset of the global financial crisis (GFC). Commercial mortgage-backed securities and unsecured bonds issued by real estate investment trusts for the period 2000 to Q3:2009 are reviewed. It is shown that events in the equity markets have an impact on the pricing of these two instruments. Furthermore, the impact of subdued activity in these financing instruments on the commercial property market is discussed.

Constructive trusts, illegal purpose and locus poenitentiae

Analyses the Family Division decision in Q v Q on the competing claims of a father and son to beneficial ownership of a house in which the father sought to on a secret agreement entered into with his sons when transferring the property into their joint names, intended to subvert the inheritance tax rules on lifetime gifts by retaining the right to have the property transferred back to him, and the son relied on a later agreement with his brother to transfer the house into his sole name, in reliance on which he and his wife had acted to their detriment by paying for its upkeep and renovation.

Private purpose trusts: a reform proposal

Argues for the introduction of statutory reform to enable valid private purpose trusts to be created by those wishing to make testamentary gifts for non-charitable purposes, with no human beneficiary. Examines the rationale employed in cases where the validity of a private purpose trust has been upheld despite the absence of a human beneficiary. Considers the approaches adopted by five offshore jurisdictions when introducing purpose trust legislation. Identifies key features to be included in any new purpose trust legislation introduced in the UK.

Resulting trusts, joint borrowers and beneficial share

Reviews case law illustrating the courts' approach to beneficial ownership of property purchased in joint name by means of a joint mortgage but without any declaration of beneficial interest, the resulting trust and joint beneficial interest presumptions. Contrast the approach adopted in cases where one party made no contribution to the mortgage payments with those where both parties made a contribution. Highlights the courts' treatment of the right to buy discount afforded tenant purchasers and property purchased as a commercial venture rather than a home.

Oral agreements: estoppel, constructive trusts and restitution

Analyses the House of Lords judgment in Cobbe v Yeoman's Row Management Ltd in relation to claims by the prospective purchaser under an oral agreement for sale of a block of flats based on proprietary estoppel, a constructive trust and common law restitution brought against the owner of the property who sought to resile from the agreement after the purchaser had, at considerable expense, obtained planning permission to redevelop the property in reliance on assurances given by the owner that if permission was granted the sale would be honoured.

The growth of private property vehicles in the UK: causes and conditions

The UK private indirect real estate market has seen a rapid growth in the last seven years. The gross asset value (GAV) of the private property vehicle (PPV) market has about tripled from a GAV of £22.6bn in 1998 to a GAV of £67.1 billion at the end of 2005 (OPC, 2006). Although this trend of growing syndication of real estate is not only a UK phenomenon, the rate of growth has been significantly faster in the UK. For example the German open-ended funds have grown over the same period from €50.4bn to €85.1bn (BVI, 2006). In the US the market capitalization of equity real estate investment trusts (REIT) has grown 155% since 1999 to US$ 301bn (NAREIT, 2006). Each jurisdiction is offering different formats to invest indirectly into real estate but at the core all these vehicles are the same in that they provide a different route for investors to access real estate. In the UK, although the range of ‘products’ is now quite diverse, all structures have in common the ‘wrapping’ of property assets into a multi-investor vehicle. This paper examines the nature, pattern and process of market growth in PPVs and constructs a series of associations between causes and effects to explain this market shift.

Are property prices non-linear? An investigation of the behaviour of US REITs and UK property company shares

Linear models of market performance may be misspecified if the market is subdivided into distinct regimes exhibiting different behaviour. Price movements in the US Real Estate Investment Trusts and UK Property Companies Markets are explored using a Threshold Autoregressive (TAR) model with regimes defined by the real rate of interest. In both US and UK markets, distinctive behaviour emerges, with the TAR model offering better predictive power than a more conventional linear autoregressive model. The research points to the possibility of developing trading rules to exploit the systematically different behaviour across regimes.

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.

Principles of equity and trusts

This fourth edition of Principles of Equity and Trusts has been comprehensively updated and revised. It retains its original style of presenting principles and remedies relevant to equity and trusts in a straightforward and succinct manner.This new edition includes a discussion of new developments in knowing receipt constructive trusts, resulting trusts, charitable trusts, injunctions, equitable recission and forfeiture. All chapters have been fully revised, with significant new analysis in a range of chapters including those dealing with the relationship between common law and equity, fiduciary obligations and certainty rules for the creation of trusts.New case discussions in this edition include:Stack v Dowden (2007) (the House of Lords considering the presumptive application of resulting trusts in domestic de facto relationships);Trustees of the Property of Cummins (a bankrupt) v Cummins [2006] (the High Court considering the presumptive application of purchase money resulting trusts in a marriage relationship);Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) (the High Court considering the scope and application of knowing receipt constructive trusts);Twinsectra v Yardley [2002] and Barlow Clowes International Ltd (in liq) v Eurotrust International [2006] 1 All ER 477 ( the House of Lords considering the dishonesty test relevant to knowing assistance constructive trusts) and Commissioner of Taxation v Word Investment Ltd [2006] (the Federal Court considering the scope of the charitable purpose test).This new edition remains an ideal book for undergraduate study, covering all aspects of equity and trusts jurisprudence in an accessible, comprehensive and up to date style.