Implied Trust

Presumption that equity follows the law

Rebuttable by presumption of advancement; presumption of resulting trust

Presumption of advancement (husband to wife; father to child; locus parentis)

It acts as an evidential tool; required to test the evidence given by both parties
rebuttable by Presumption of RT; CT
*Mother to child
Traditional view (Benett v Benett / Watson v Smith)
Modern Approach Lord Reid: the presumption must have been much diminished (Pettitt v
Pettitt)
HK (Suen Shu Tai v Tam Fung Tai; Ip Man Shan Henry v Ching Hing Construction Co Ltd;
Nanyang Commercial Bank Ltd v Personal Representative of Vannee Nativivat)
depends on all the circumstances including:
(1) closeness of their relationship
(2) extent of the childs financial dependence
(3) age of the parent and the child

Presumption of Resulting Trust

(1) Direct financial contribution to purchase price (at the time / soon after purchase)
(2) Indirect financial contribution to purchase
must be common intention
must be substantial and referable to cost of acquisition
Implied Trust Domestic Home Context

Presumption that equity follows the law (Stack v Dowden; Jones v Kernott)

Unless the presumption is rebutted by common intention

(Route 1) Express common intention Lloyds Bank v Rossett (1989)
Express promise + Detrimental reliance? (Eves v Eves; Grant v Edwards)
Infer Implied common intention (Stack v Dowden)
(Route 2) Financial Contributions
Contribution at the time of acquisition: Kernott resulting trust inappropriate for domestic
context
Contribution after acquisition
(3) Entire relationship to each other and the way they regard the property (para 69)

Quantification
Holistic approach parties whole course of dealing (Stack v Dowden)
Contribution after acquisition: shares agreed / fair in the circumstances (Oxley v Hiscock)
The common intention towards the shares could be express, inferred or imputed (Jones v
Kernott)
Each is entitled to that share which the court considers fair having regard to the whole course of
dealing between them in relation to the property (Stack v Dowden para 61)
Proprietary Estoppel

Establish an Equity (Taylors Fashions; Crabb v Arun District Council)

1) Assurance
2) Detrimental reliance
must be reasonable reliance
presumed reliance in domestic; commercial: who rely on PE should prove
3) Unconscionability

Extent of the Equity (interest in land)

Relief to satisfy the Equity (courts discretion)

Adverse Possession (Limitation Ordinance)

s. 13 and s. 8
Factual Possession
A) Abandonment
B) Discontinue possession for future use + Adverse possession
Implied Licence (HK: Man Kam-tong v Man Lin-tai Hunter J: follow old cases
and do not apply automatic implied licence Wallis in HK)
Adverse Possession through licensee (Sze To Chun Keung) / tenant (Tang Tak Hong)
e.g. Government wrongly permit a licence to a licensee / a wrongly-claimed owner lend
the property to tenant
Animus possidendi (Intention to possess)
s. 13(2): aggregation of periods of adverse possession if continuous, no substantial gap (common
sense + case-by-case)

s. 7 Accrual of period
(1) Government = 60 years
(2) pre-1 July 1991 = 20 years; post-1 July 1991 = 12 years

s. 17 Extinction of title after expiration of period

Squatter obtains a possessory title; the leaseholders title is extinguished against the squatter but
not against the freeholder

s. 9(1): interest in reversion (freeholders future interest)

Government freeholder (s. 7(1)): 60 years after leaseholders lease ended
Private freeholder (s. 7(2)): 20 years (pre-1 July 1991) / 12 years (post-1 July 1991)
Priority
s. 3(1): Registrable (Registered) priority depends on date
s. 3(2): Registrable (Unregistered) Lose priority to bona fide purchaser for value (with exception)
s. 5: Register within 1 month: date of execution is deemed to be the date of registration
s. 5A: charging order / lis pendens priority takes place the day following registration
Registrable
Registrable
Registered v Registered s. 3(1) Land Registration Ordinance
Registered v Unregistered - s. 3(1) Land Registration Ordinance
Unregistered v Registered
(Markfaith v Chiap Hua operation of s. 3(2) unregistered
instrument is postponed to bona fide purchaser or mortgagee for
valuable consideration) [except for bona fide lease at rack rent not
exceeding three years]
*option to renew is not lease cannot be exempted from s. 3(2)
(Keep Point s. 3(1) + s. (4) read together prevails notice (bona
fide is irrelevant) as long as registered, priority should be given
even under s. 3(2): the Plaintiff would win by showing bona fide
Unregistered v Unregistered
operation of s. 3(2) unregistered instrument is postponed to bona fide
purchaser or mortgagee for valuable consideration) [except for bona
fide lease at rack rent not exceeding three years]
Advise the party to go register ASAP if both registered then resolve
it by s. 3(1) + s. 5 counting the dates
Registrable

Unregistrabl
e

Lacuna
1st Registered Priority

Unregistrable
(Common Law)

Registrable
Unregistrabl
e

1st Unregistered s. 3(2) / Doctrine of notice

Legal-Legal: 1st in time prevails
Legal-Equitable: 1st in time
Equitable-Legal: 2nd in time Equitys Darling?
Equitable-Equitable: 1st in time

Husband pay all Husband title (Mo Ying) (Eves v Eves) (Grant v Edwards) (Lloyds Bank plc v Rosset)
Husband pay all Wife title (Presumption of advancement)
Husband pay all Husband + Wife title (Ho Nga Sheung)
Husband and wife pay Husband title
Husband and wife pay Wife title
Husband and wife pay Husband and wife title (Stack v Dowden; Jones v Kernott; Midland Bank plc v
Cooke)