Constructive trusts - Free Essay Example

Question A constructive trusts Constructive trusts are Trusts that Arise By Operation of the Law (TABOLs). This means that the law has imposed these trusts under certain circumstances. The law automatically creates an equitable title for beneficiaries in the property of the legal owner. They, are then, distinct from intentional trusts (which the settlor creates himself by using his power of ownership to create a trust). Constructive trusts may be imposed by the law in three circumstances; where a vendor of property fails or refuses to execute the necessary documents to transfer legal title to the recipient, equity states that the vendor holds the property on constructive trust for the recipient from the moment the contract of sale is signed. Secondly, where legal title to property is transferred to a third party in breach of an existing trust, the recipient can be described as a constructive trustee so that the original beneficiary can still claim his equitable interest. Finally, a constructive trust arises where individuals acquire an interest in anotherà ¢Ã¢â€š ¬Ã¢â€ž ¢s property because of their à ¢Ã¢â€š ¬Ã…“past dealings or relationship with the owner.à ¢Ã¢â€š ¬Ã‚ [1] This is the category which is relevant in this instance, and the most common one of its t ype is the constructive trust of the family home. In basic terms, a constructive trust of the family home arises where two people (usually spouses) cohabit, and although the legal title to the property is in the name of only one, the other relies on an informal agreement of joint ownership to his or her detriment. This party will acquire an equitable interest in the property under a constructive trust. The individual must show, however, that she has à ¢Ã¢â€š ¬Ã…“altered her position in reliance upon the agreement à ¢Ã¢â€š ¬Ã‚ ¦ thereby acquiring an enforceable interest à ¢Ã¢â€š ¬Ã‚ ¦ by way either of a constructive trust or a proprietary estoppelà ¢Ã¢â€š ¬Ã‚  (Lloyds Bank plc v Rossett). The law alters the legal ownerà ¢Ã¢â€š ¬Ã¢â€ž ¢s property rights in what is usually the most significant asset owned. Oakleyà ¢Ã¢â€š ¬Ã¢â€ž ¢s comment (above) reflects an ambivalence within the legal profession towards the constructive trust as a whole, and in particular those of the fam ily home. This is based upon the fact that it is a largely arbitrary device, imposed or withheld in each case on the merits of that case, based on a consideration of what is just and equitable. The constructive trust, then, is a creature of equity which seeks to bring justice where the strict letter of the law would deliver an unjust solution. By its nature, then, it is unpredictable, which accounts for the suspicion surrounding it. Added to this is the fact that the power of equity in this case has not been informed by entirely coherent principles. A constructive trust may be imposed subject to proof of three elements. The first of these is a bargain (or common intention). This can be express or implied; that is to say the courts may infer a common intention from the partiesà ¢Ã¢â€š ¬Ã¢â€ž ¢ conduct (Gissing v Gissing, per Lord Diplock). This is the so-called à ¢Ã¢â€š ¬Ã‹Å"common intentionà ¢Ã¢â€š ¬Ã¢â€ž ¢ approach, which was laid down in Pettitt v Pettitt. Secondly, there mu st be a demonstrable change in position based upon any agreement by the person seeking to establish an equitable interest. This is usually shown by proving that the person incurred a detriment or made a à ¢Ã¢â€š ¬Ã‹Å"material sacrificeà ¢Ã¢â€š ¬Ã¢â€ž ¢ in response to some bargain for beneficial entitlement (Gissing v Gissing). This change in position will usually include financial contributions or à ¢Ã¢â€š ¬Ã…“the devotion of onerous labour to a joint ventureà ¢Ã¢â€š ¬Ã‚ .[2] Finally, there must be what is known as à ¢Ã¢â€š ¬Ã‹Å"equitable fraudà ¢Ã¢â€š ¬Ã¢â€ž ¢, or the unconscionable denial of rights. This arises where the legal owner tries to deny any bargain (which has been established) by à ¢Ã¢â€š ¬Ã…“asserting the absolute, exclusive or unqualified nature of his own rights.à ¢Ã¢â€š ¬Ã‚ [3] These three requisite features were most clearly displayed in the case of Bannister v Bannister, where a lady conveyed her freehold interest in two properties to her brother-in-l aw at low rates, on the oral condition that she should be allowed to live in one of them rent-free for the remainder of her life. When the brother-in-law sought to evict her, the court held that the brother-in-law held his legal title on constructive trust, thereby giving effect to the beneficial life interest granted to the lady. A striking feature of the constructive trust of the family home is its similarity to proprietary estoppel, which is another means by which rights in land may be created informally. It has even been suggested that there is no real difference between these two strands of doctrine (Birmingham Midshires Mortgage Services Ltd v Sabherwal). It is also the case that the significance of the constructive trust in the family home has been much reduced in the case of spouses (its real significance being found in the case of other unmarried cohabitees, including same-sex couples, parents and unmarried children and others)). This is because in the case of spouses, i t would commonly arise on the breakdown of a relationship, and the courts are empowered by statute to alter property rights in these circumstances.[4] A key feature of Pettitt v Pettitt was the courtà ¢Ã¢â€š ¬Ã¢â€ž ¢s reluctance to afford the courts a general jurisdiction to rearrange the property rights of cohabitees on the breakdown of their relationship in whatever way seemed à ¢Ã¢â€š ¬Ã…“fair and just in all the circumstancesà ¢Ã¢â€š ¬Ã‚ . This pre-empted much of the uncertainty that could have arisen as a result of this type of constructive trust, but other areas persist. In many cases, for example, it is unclear whether the extent of reliance has matched what was expected under the parties common understanding. This problem was identified by Browne-Wilkinson VC in Grant v Edwards. Although there is a degree of uncertainty surrounding the constructive trust, then, and a high level of overlap with proprietary estoppel, the uncertainty ha been reduced by the courtsà ¢Ã¢â€š ¬Ã¢â€ž ¢ general reluctance to afford themselves an open-ended jurisdiction to alter property rights, as seen in Pettitt v Pettitt, and the fact that the various developmental strands of the doctrine have been drawn together in the case of Lloyds Bank plc v Rossett, in which the House of Lords delivered a unanimous verdict. As Penner states, this is now the à ¢Ã¢â€š ¬Ã…“authoritative enunciationà ¢Ã¢â€š ¬Ã‚  of the basic principles, and has reduced the lack of certainty considerably.[5] Question B problem question In this scenario, the property 8 Emerald Way is purchased in the sole name Mary. That means that she has sole legal title to the property, which in turn means that Philip does not own the legal title. At first sight, then, this situation looks promising for Mary when the relationship breaks down, as it would suggest that she, as sole legal owner, can exercise those rights associated with ownership that one would usually expect; most significantly in this s cenario, the power of sale. The situation is not that simple, however. Judging by the facts of the case, it seems certain that the courts would conclude that a constructive trust had arisen in favour of Philip. There is a further problem for Mary which relates to the contract of sale into which she has entered with Sam. This will be dealt with in turn, but it certainly seems likely that Philip will come off best. A constructive trust of the family home arises when three conditions are met. Firstly, there must be a bargain (or common intention) between the parties. This may be implied (inferred from the partiesà ¢Ã¢â€š ¬Ã¢â€ž ¢ conduct) or express. In this situation, it does not appear there was an express bargain made. The fact that there was a specific reason for the legal title to be put in the sole name of Mary (in order to avoid claims from creditors endangering the property if Philipà ¢Ã¢â€š ¬Ã¢â€ž ¢s business ran into difficulty), however, could be seen to constitute a ba rgain. It is, however, sufficient that there is a common intention to à ¢Ã¢â€š ¬Ã…“confer or share some definable beneficial interest in the property concernedà ¢Ã¢â€š ¬Ã‚  (Bannister v Bannister). As it appears that it was the partiesà ¢Ã¢â€š ¬Ã¢â€ž ¢ intention to share the beneficial ownership of the property, this condition of the constructive trust is met. This is a positive situation for Philip, but not so positive for Mary. The second aspect of a constructive trust is that the party seeking to establish a beneficial interest has changed his or her position in reliance upon the bargain (Gissing v Gissing). This additional requirement is a response to the statutory provision that an oral declaration of a trust of land is unenforceable.[6] Again, it seems likely in the present scenario, that Philip would have little trouble establishing detrimental reliance upon the bargain. We are not informed how the 5% deposit of  £5,000 was paid, but it seems likely that it wa s paid in equal shares by Mary and Philip. On top of this, the utility bills and general household expenses have been paid by Philip. These may be considerable. The fact that he bought the coupleà ¢Ã¢â€š ¬Ã¢â€ž ¢s new car, and funded their recent holiday to Corfu would add to this, as it has been held that à ¢Ã¢â€š ¬Ã…“indirect expenditure on the household or otherwise comprise a sufficient change of position for the purpose of founding à ¢Ã¢â€š ¬Ã‚ ¦ a constructive trust.à ¢Ã¢â€š ¬Ã‚ [7] If Philip is relying upon an implied bargain to share beneficial ownership as opposed to an express agreement, as seems likely in this case, the courts will require much more stringent proof of detriment on his part. The courts would largely be preoccupied with contributions of a monetary nature. In Lloyds Bank plc v Rossett, Lord Bridge doubted that anything less than à ¢Ã¢â€š ¬Ã…“direct contributions to the purchase priceà ¢Ã¢â€š ¬Ã‚  would be sufficient evidence of a detrimental change in position. It seems to be in favour of Maryà ¢Ã¢â€š ¬Ã¢â€ž ¢s case that the only direct financial contribution which Philip made to the purchase price was, possibly, half of the initial 5% deposit. It is significant that although it seems likely that the courts would find there to be a constructive trust in favour of Philip, that does not necessarily mean that they would be found to own the beneficial interest in equal shares. The court would be free to attribute whatever ownership shares it thought appropriate and fair (Midland Bank plc v Cooke). This would argue in favour of Mary, as she has undoubtedly made more financial contribution to the property through the mortgage repayments that Philip has. In Eves v Eves, for example, the claimant redecorated the entire house, demolished a garden shed, and prepared the garden for turfing. The Court of Appeal awarded her a one-quarter share under a constructive trust. From Samà ¢Ã¢â€š ¬Ã¢â€ž ¢s point of view, the construc tive trust in favour of Philip will probably be found to bind Sam as well (as happened, for example, in Williams Glynà ¢Ã¢â€š ¬Ã‹Å"s Bank Ltd v Boland). Before entering the contract for sale, Sam should have made such enquiries as were reasonable to discover Philipà ¢Ã¢â€š ¬Ã¢â€ž ¢s interest. If a constructive trust is found in favour of Philip, then, he remains the beneficiary while Sam would become the constructive trustee. Mary would be liable to Philip for whatever monetary loss Philip has incurred. In summary, then, Maryà ¢Ã¢â€š ¬Ã¢â€ž ¢s position with regard to claiming sole ownership of the property is not very strong. Although she is the sole legal owner, it seems likely that the courts will impose a constructive trusteeship on her in relation to Philipà ¢Ã¢â€š ¬Ã¢â€ž ¢s beneficial share of the property. This may not be a 50% share, but it is certainly likely to be something. The contract of sale is subject to the constructive trust, and Philip would have a direct mo ney claim against Mary for losses suffered. BIBLIOGRAPHY Statutes Law of Property Act 1925 Matrimonial Property and Proceedings Act 1970 Matrimonial Causes Act 1973 Cases Bannister v Bannister [1948] 2 All ER 133 Birmingham Midshires Mortgage Services Ltd v Sahara [2000] 80 P CR 256, CA Eves v Eves [1975] 1 WLR 1338, CA Gissing v Gissing [1971] AC 886 Grant v Edwards [1986] Ch 638 Lloyds Bank plc v Rossett [1991] 1 AC 107 Midland Bank plc v Cooke [1995] 4 All ER 562, CA Pettitt v Pettitt [1970] AC 777 Williams Glynà ¢Ã¢â€š ¬Ã‹Å"s Bank Ltd v Boland [1981] AC 487 Secondary sources Gray, K., and Gray, S.F., Elements of Land Law (Oxford, 2005) Martin, J.E., Modern Equity (London, 2001) Penner, J.E., The Law of Trusts (LexisNexis, 2004) Footnotes [1] Penner, J.E., The Law of Trusts (LexisNexis, 2004), p.127 [2] Gray, K., and Gray, S.F., Elements of Land Law (Oxford, 1995), p.937 [3] Gray, K., and Gray, S.F., Land Law (Butterworths, 2003), p.288 [4] Matrimonial Property and Proceedings Act 1970, s37, and Matrimonial Causes Act 1973, s24 [5] Penner, p.133 [6] Law of Property Act 1925, s53(1)(b) [7] Gray and Gray, p.297

Improving Environmental Sustainability in Restaurant Business Essaypilot

Abstract The aim of this research proposal is to investigate the ways of improving environmental sustainability in the restaurant business. Several journals relevant to the restaurant setting in terms of customer satisfaction and management will be delved into in this paper. Questionnaires will be self-administered and distributed to consumers in twenty full-service restaurants. Collection of data will be done through the construction of charts and tables used in obtaining a comprehensive result (Wolf, 2015). Restaurants will be able to use this proposal to find the best ways of improving environmental sustainability in the restaurant business. Statement of the Problem There is increased research not only in price and the quality of the merchandise itself but also provision of pleasant and exciting shopping atmosphere. Most studies which focus on the impacts of store environment on retail market behavior but few have explored on improving environmental sustainability in the hospitality industry, especially in the restaurant business (Fukuhara et al, 2014). Most researchers have carried out some surveys on the influences of restaurants on the environment but the summary of impacts are not exhaustively worked upon and thus becomes insufficient (Rabinowitz, 2016). This study will summarize all impacts, so the restaurant owners and managers will find this study significant. The research questions will be what environmental effects does restaurant business have on consumers? Will the restaurants environmental impacts be influenced by making responsible decisions? Literature Review In order to deal with the relations between environment and individual responses to stimuli, Mehrabian and Russell (1974) presented a very good model in psychology. The M-R model used by some researchers to an environment can be grouped as either approach or avoidance behavior. Good environment is stated to cause approach behavior and include spending and repeat purchase (chang, 2000). Methodology Design and Instrumentation The reason for this research is to find out ways of improving restaurants environmental sustainability. Self-administered questionnaires will be used to collect data as per consumers perceptions of the restaurants on the environment. The first part of the questionnaire will contain attributes reflecting employees perception of the environment and atmospherics. The second part will be participants dining satisfaction level. A five-point Likert scale range will be used from strongly agree to strongly disagree. The third part would be a general question on individual recommendations to improve sustainability. Sampling, Data Collection and Analysis Sampling will be random and a sample size of twenty respondents will be used. Participation will be voluntary and a survey will be held as customers wait to be served. At the end of the survey, the frequency of each response will be computed to prepare tables and charts. All the statistical tests will use the standard alpha level (ОÂ ± = .05). The analysis will pose the general idea about consumersÐ ² attitude to the restaurants environment. Owners and managers of the same will benefit from this and improve environmental sustainability. References Fukuhara, T., Tenmoku, R., Okuma, T., Ueoka, R., Takehara, M., Kurata, T. (2014). Improving service processes based on visualization of human-behavior and POS data: A case study in a Japanese restaurant. InÐ’ Serviceology for ServicesÐ’ (pp. 3-13). Springer Japan.Rabinowitz, M. (2016). Assessing the Effect of Social Networks on Employee Creativity in a Fast-Food Restaurant Environment.T hompson, R. (2015).Ð’ Counseling techniques: Improving relationships with others, ourselves, our families, and our environment. Routledge.Wolf, J. W. (2015). Guest perceptions of wait times using tablet technology in restaurant environmentÐ’ (Doctoral dissertation, University of MissouriColumbia).`