Article on Kerr v Baranow in Conveyancer and Property Lawyer

My commentary on the decision of the Canadian Supreme Court in Kerr v Baranow has just appeared (‘The constructive trust: from common intention to relationship? Kerr v Baranow’, [2011] Conveyancer and Property Lawyer 515 – 521). The judgment in Kerr looks at the use of unjust enrichment as a way of allocating rights in the assets of a ‘joint family venture’. The nature of the relationship between the co-habitees and the role of that relationship in improving the family’s balance sheet are central elements of the analysis. The article contrasts this approach with the use of the common intention constructive trust in England. It asks whether, despite the differences in approach between the two jurisdictions, there is evidence of convergence? After Stack, can it be said that the nature of the relationship between the parties (especially in its financial aspects) plays an important role in reaching a conclusion as to the ‘common intention’?

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