Archive for the ‘Common intention constructive trusts’ Category

Marriage and ownership: Mo Ying

August 23, 2016

This article explaining the effect of Mo Ying v Brillex Development Ltd has just been published in the SCMP.

Michael Lower

Seminar on ownership of the family home in Hong Kong

March 31, 2016

I gave a research seminar yesterday on ownership of the family home in Hong Kong at the Faculty of Law at the Chinese University of Hong Kong. Here is the abstract:

‘Disputes about ownership rights in the family home when couples break up occur quite frequently. Matters are considerably simplified where the parties have formally expressed their intention as to their respective ownership rights in the home. In many cases, however, there was no express agreement between them. In such a case, the law of the common intention constructive trust requires the court to ‘discover’ and give effect to an informal understanding between the parties as to the ownership of the family home. Hong Kong’s law has been heavily influenced by English law and the courts have drawn on major developments such as the House of Lords decision in Stack v Dowden After Stack, it was unclear whether an intention as to ownership rights could be imputed to the couple where there was no evidence that they had reached an actual agreement. The UK Supreme Court addressed this in Jones v Kernott. Mo Ying v Brillex Developments Ltd provided Hong Kong’s Court of Appeal with an opportunity to reflect on the state of Hong Kong law after Jones v Kernott. This seminar will explain and analyse the state of Hong Kong’s law after Mo Ying.’

Michael Lower

What to do with the family home after a couple split up

June 23, 2015

My article ‘What to do with the family home after a couple split up‘ has just appeared in the SCMP

Article on Kerr v Baranow in Conveyancer and Property Lawyer

December 20, 2011

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’?