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The Secondary-Rights Approach to the ‘Common Intention Constructive Trust’

Liew, YK; (2015) The Secondary-Rights Approach to the ‘Common Intention Constructive Trust’. The Conveyancer and Property Lawyer , 2015 (3) pp. 210-225. Green open access

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Abstract

Unlike ‘primary rights’ constructive trust doctrines, the CICT affords courts a wide discretion in determining the appropriate remedy in a particular case. This paper suggests that the CICT can take a step towards conceptual and analytical coherence if approached as a device for courts to award remedies that give effect to A’s secondary rights. When B breaches his primary duty to ensure A does not suffer harm from the unreliability of his induced assumptions, and when this causes A to suffer detrimental reliance, A obtains an unliquidated secondary right to be compensated for any harm, and a judge has discretion to determine the appropriate content of the remedy to compensate A for harm suffered. Since this approach is highly similar to proprietary estoppel, assimilating the CICT within proprietary estoppel can further benefit our understanding and practice of resolving disputes in the family homes context.

Type: Article
Title: The Secondary-Rights Approach to the ‘Common Intention Constructive Trust’
Open access status: An open access version is available from UCL Discovery
Publisher version: http://login.westlaw.co.uk/maf/wluk/ext/app/docume...
Language: English
Additional information: © 2015 Thomson Reuters (Professional) UK Limited.
Keywords: Common intention constructive trust, family homes, proprietary estoppel, primary/secondary rights
UCL classification: UCL
UCL > Provost and Vice Provost Offices > UCL SLASH
UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of Laws
URI: https://discovery.ucl.ac.uk/id/eprint/1460202
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