DOI link for Constructive trusts
Constructive trusts book
A constructive trust is an institution that has been created by the courts in order to promote justice and fairness between the parties. The effect of the trust is that the defendant holds the relevant property upon trust for the claimant whenever it would be unconscionable for the defendant to deny the claimant an interest in the property. Generally, constructive trusts are institutional in that they operate in accordance with established principles and may affect the interests of third parties. An alternative approach, which has found favour in North America, is that the trust is remedial in the sense that the court in its discretion declares the trust, which then operates prospectively. The categories of constructive trusts have been deliberately left vague by the court so as not to restrict its discretion. The Supreme Court has recently re-stated in Jones v Kernott that proprietary rights in the family home are subject to the constructive trust, provided that there is no evidence of a contrary intention. Finally, there are a number of occasions when a stranger to a trust may become a constructive trustee or may be accountable to the benefi ciaries without becoming a constructive trustee.