Detrimental Reliance | Extract from Dictionary of TLATA and Inheritance Act Claims 2023

Detrimental Reliance

The traditional view is that for a constructive trust to arise, it is necessary to prove both a common intention of beneficial ownership, and detrimental reliance, i.e. that the claimant has acted to their detriment (or changed their position) based upon that common intention.

One of the maxims of equity is that equity does not assist a volunteer:1 a claimant should be able to show they have relied to their detriment on the common intention that they should have an interest in the property.

The need for detriment was described succinctly by Baron J in G v G (Matrimonial Property: Rights of Extended Family) [2005] EWHC 1560 (Admin) at [87] and [95]:

‘A constructive trust does not come into existence merely from a gratuitous intention to transfer or create a beneficial interest, because such an intention would amount to an unenforceable declaration of trust. Equity will not assist a volunteer, and the element of detriment/change of position is essential …

… a change of position ranks in terms of “detriment” or “sacrifice” only if it results in a net disadvantage to the individual concerned. A claimed detriment must hurt, and claims of constructive trust tend to fail to the extent that the claimant has already benefited from the effort alleged.’

It is not always easy to draw a clear line between detriment and the sort of acts which a person might undertake, unconnected to any understanding of beneficial ownership. In Grant v Edwards [1986] EWCA Civ 4, [1987] 1 FLR 87 at 95, per Nourse LJ:

‘It would be possible to take the view that the mere moving into the house by the woman amounted to an acting upon the common intention. But that was evidently not the view of the majority in Eves v Eves (above). And the reason for that may be that, in the absence of evidence, the law is not so cynical as to infer that a woman will only go to live with a man to whom she is not married if she understands that she is to have an interest in their home. So what sort of conduct is required? In my judgment it must be conduct on which the woman could not reasonably have been expected to embark unless she was to have an interest in the house.’

What amounts to detriment?

(1) Financial contributions to the purchase price, as distinct from the sharing of household costs such as food and bills, which have traditionally been considered inadequate.2

(2) Substantial improvements to a property. In Button v Button [1968] 1 All ER 1064, Lord Denning MR distinguished the DIY jobs a person might undertake to their partner’s property (which would not amount to detriment) as opposed to more significant works ‘which normally a contractor is employed to do’:

‘The reason is because the court may then infer that the parties, if they had thought about it, would have agreed that if they separated, then in adjusting their financial affairs, the husband should be given a share in the proceeds of the house commensurate with the work he had done.’

To cite one classic example, a woman who worked on a dilapidated property, who used a 14lb-sledgehammer to break up the concrete drive, was found to have acted in reliance of an assurance that she would co-own the property, and not out of love and affection for the owner.3

(3) Detriment should be ‘substantial’4 (alternatively, ‘detriment should hurt’), although in practice, this is not a rigorous test:

‘once it has been shown that there was a common intention that the claimant should have an interest in the house, any act done by her to her detriment relating to the joint lives of the parties is, in my judgment, sufficient to qualify. The acts do not have to be inherently referable to the house.’5

(4) The reliance need not be the sole cause of the detriment but there should be a sufficient link.6

(5) Detriment should be assessed and evaluated over the course of the parties’ dealings in respect of the property.7

Dictionary of TLATA and Inheritance Act Claims 2023

The Dictionary of TLATA and Inheritance Act Claims sets out the key concepts, cases and practice in four important areas where family law overlaps with the law of trusts and real property: (i) the Trusts of Land and Appointment of Trustees Act 1996 (‘TLATA’); (ii) applications for financial provision pursuant to the Inheritance (Provision for Family and Dependants) Act 1975; (iii) Schedule 1 applications for financial relief for children; and (iv) an overview of civil procedure and the Civil Procedure Rules 1998. This publication contains a procedural guide and table of relevant cases.

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