Rethinking the Common Intention Constructive Trusts in Stack v Dowden and Jones v Kernott – should the Resulting Trusts be preferred?
Yee Ching Leung takes the two landmark cases, Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2011] UKSC 53, as starting points to consider the new Common Intention Constructive Trust approach in dealing with the issue of how the beneficial interest of a property is to be shared between two separ...
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| Format: | Article |
| Language: | English |
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University of London
2019-06-01
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| Series: | IALS Student Law Review |
| Online Access: | https://journals.sas.ac.uk/index.php/lawreview/article/view/4962 |
| _version_ | 1811214046893965312 |
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| author | Yee Ching Leung |
| author_facet | Yee Ching Leung |
| author_sort | Yee Ching Leung |
| collection | DOAJ |
| description | Yee Ching Leung takes the two landmark cases, Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2011] UKSC 53, as starting points to consider the new Common Intention Constructive Trust approach in dealing with the issue of how the beneficial interest of a property is to be shared between two separating cohabitants. The article analyses whether this new approach should be preferred over the traditional Resulting Trust approach. The author explains the two approaches and gives three arguments in support of the Resulting Trust approach. First, it provides a greater degree of certainty, which is crucial in property law. Secondly, the traditional approach is more coherent in principle when comparing to the Common Intention Constructive Trust approach. Thirdly, the author argues that the Resulting Trust approach would not leave the discretion of judges unconfined. Toward the end of the article, the author gives two brief replies to the critics of the Resulting Trust approach. However, the Common Intention Constructive Trust approach is now the law of England and whether the Resulting Trust approach will return remains to be seen. |
| first_indexed | 2024-04-12T05:56:35Z |
| format | Article |
| id | doaj.art-ed5be0c9eb494210b3e6386d24212be6 |
| institution | Directory Open Access Journal |
| issn | 2053-7646 |
| language | English |
| last_indexed | 2024-04-12T05:56:35Z |
| publishDate | 2019-06-01 |
| publisher | University of London |
| record_format | Article |
| series | IALS Student Law Review |
| spelling | doaj.art-ed5be0c9eb494210b3e6386d24212be62022-12-22T03:45:08ZengUniversity of LondonIALS Student Law Review2053-76462019-06-01263710.14296/islr.v6i1.49624962Rethinking the Common Intention Constructive Trusts in Stack v Dowden and Jones v Kernott – should the Resulting Trusts be preferred?Yee Ching LeungYee Ching Leung takes the two landmark cases, Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2011] UKSC 53, as starting points to consider the new Common Intention Constructive Trust approach in dealing with the issue of how the beneficial interest of a property is to be shared between two separating cohabitants. The article analyses whether this new approach should be preferred over the traditional Resulting Trust approach. The author explains the two approaches and gives three arguments in support of the Resulting Trust approach. First, it provides a greater degree of certainty, which is crucial in property law. Secondly, the traditional approach is more coherent in principle when comparing to the Common Intention Constructive Trust approach. Thirdly, the author argues that the Resulting Trust approach would not leave the discretion of judges unconfined. Toward the end of the article, the author gives two brief replies to the critics of the Resulting Trust approach. However, the Common Intention Constructive Trust approach is now the law of England and whether the Resulting Trust approach will return remains to be seen.https://journals.sas.ac.uk/index.php/lawreview/article/view/4962 |
| spellingShingle | Yee Ching Leung Rethinking the Common Intention Constructive Trusts in Stack v Dowden and Jones v Kernott – should the Resulting Trusts be preferred? IALS Student Law Review |
| title | Rethinking the Common Intention Constructive Trusts in Stack v Dowden and Jones v Kernott – should the Resulting Trusts be preferred? |
| title_full | Rethinking the Common Intention Constructive Trusts in Stack v Dowden and Jones v Kernott – should the Resulting Trusts be preferred? |
| title_fullStr | Rethinking the Common Intention Constructive Trusts in Stack v Dowden and Jones v Kernott – should the Resulting Trusts be preferred? |
| title_full_unstemmed | Rethinking the Common Intention Constructive Trusts in Stack v Dowden and Jones v Kernott – should the Resulting Trusts be preferred? |
| title_short | Rethinking the Common Intention Constructive Trusts in Stack v Dowden and Jones v Kernott – should the Resulting Trusts be preferred? |
| title_sort | rethinking the common intention constructive trusts in stack v dowden and jones v kernott should the resulting trusts be preferred |
| url | https://journals.sas.ac.uk/index.php/lawreview/article/view/4962 |
| work_keys_str_mv | AT yeechingleung rethinkingthecommonintentionconstructivetrustsinstackvdowdenandjonesvkernottshouldtheresultingtrustsbepreferred |