In advising Bennys position of the interest over the said property (the flat), it is necessary to examine the relationship between Amy and Benny, because, the flat is at Amys sole name.

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Course Title: Law of Property

Course Code: LW2206

Name: Ip Kim Man

Student No. 88122570

In advising Benny’s position of the interest over the said property (“the flat”), it is necessary to examine the relationship between Amy and Benny, because, “the flat” is at Amy’s sole name. It is not arguable, Amy is the legal owner and subsequently withheld the legal title. Also, they are unmarried couple and started cohabiting lived at “the flat”. Besides “the flat” was free of mortgage, in virtue of Amy’s earned profits made from her investments. Thus, it is difficult for Benny to entitle as he wished at least a half share of “the flat”. In analysis the proposition of legal authority, there are two limbs of recognised interest over “the flat”, either legal interest or equitable interest.

Legal interest is binding upon to the whole world, all subsequent created legal or equitable interest. Admittedly, Benny did not have such legal interest (or estate). The legal interest (or estate) is enforced by the common law rules, as well defined at Section 2 of CPO in statutory and creates into formalities (emphasis on ’form’). It means that “the flat” is to be disposed (i.e. transferred and created) its legal interest by assignment (“conveyancing document”). Must be in the form of a deed signed, sealed and delivered by the vendor (one hold legal title as legal owner) to effect a valid transfer of legal estate. Owing to Amy’s sole name over “the flat”, then Benny did not have such legal title.

Nevertheless, it could be unfair or unjust, whether Benny did not qualify his legal title to ignore his financial contribution at the past. Under the rule of equity may intervene to bring equitable remedies to recognise his equitable interest. It is derived from the equitable principle of “equity looks on that as done which ought to be done.” The courts exercise their discretion to rectify the defects of common law rules to grant an order of specific performance to demand the property its entitled equitable right.  Equity is only concerned with the substance. By way of recognised proprietary interest creates in prevailing of legal interest under equitable doctrine of estoppel. At statutory, equitable estate (or interest) is well defined in Section 2 of CPO, to qualify an estate or interest does not meet with the requirement of Section 4(1) of CPO and subsequently created and disposal at Section 5(1)(a) of CPO.

In possibility of existence in relationship between legal owner and beneficiary, so Benny’s equitable interest could be created by way of an express trust followed Section 5(1)(b) of CPO. Obviously, it is necessary to examine, whether Amy would authorise in disposition her beneficial interest to him under any written document. Unfortunately, Amy did not deliberately give Benny any express declaration either in writing or evidences in writing of oral declaration signed by Amy to transfer her legal title by operation of law to trust of interest over “the flat”.

Under this circumstance, Benny would have to establish his equitable interest by ways of implied, resulting or constructive trust. For “resulting trust”, divides into two main categories as: (a) automatic resulting trust and (b) presumed resulting trust. Consequently, Amy did not proceed through any formal process to transfer ownership to Benny as intended trustee. Therefore, Benny is not favour to “automatic resulting trust”, in order to acquire his beneficial interest.

Under doctrine of “presumed resulting trust” is to protect a person, who provides the purchase money of a property, but put in someone else’s name. The person (money provider) shall have intended to acquire a beneficial interest over the property. Admittedly, there are certain kinds of financial contributions to qualify Benny’s beneficial interest as: (1) direct contribution towards the purchase price of property and (2) less direct contribution.

As if Benny wishes to establish presumption to resulting trust, he ought to take the views to the followings: -

  1. He requires taking views to what nature of relationship and circumstance between them. Because presumption of resulting trust will be rebutted due to transitional relationship that do not have the responsibilities owed by legal owners i.e. wife to her husband and unmarried partners. It is asserted that Amy bought “the flat”, but it was not their matrimonial home. Also, they are unmarried partners and only cohabited. Even though, there is presumption of advancement in between husband and wife, but it is still rebutted for unmarried couples at resulting trust.
  2. He ought to consider, whether any direct/less direct financial contributions made by him to the purchase price of “the flat”. The answer is negative, because all of purchase price was totally come from Amy.

3.        He did not pay for management fees and utility charges, even though he actually paid for these fees and charges, but were not related to purchase price.

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4.        He did intend to pay rent to Amy at the past, but Amy denied. He was being a tenant to possess his occupation, even though he actually paid rent.

5.        He wished to claim at least a half share. It is clearly that it is pure arithmetics to establish equitable shares of ownership by way of resulting trust. He is successful to amount of entitled shares, depends on his actually financial contribution in proportion to the purchase price. It is realistic that he is impossible to claim half share, just merely rely on resulting trust.

Alternatively, Benny can rely on ...

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