In Wodzicki v Wodzicki  EWCA Civ 95, the Court of Appeal addressed three key questions, each of which is, in its own way, instructive as to the contemporary operation of the rules relating to implied trusts in the context of (broadly defined) domestic properties. First, how does the “common intention” requirement of the common intention constructive trust operate in cases where a third party is claiming an interest in land co-owned by two people and one of those people is unaware of promises/discussions relating to the relevant property? Second, what is the scope of the ‘prohibition’ on the use of resulting trusts in the domestic context? Finally, what role, if any does proprietary estoppel have to play in establishing an interest under a trust where a common intention constructive trust or a resulting trust are otherwise unavailable to a claimant?
These questions arose following the death of the claimant, J’s, father. The father, G, died intestate. The dispute was between J and G’s wife at the time of his death, M. The property in question was registered in the joint names of G and M, having been acquired in part with the help of a mortgage secured against G and M’s home (in France). The house had been purchased expressly for the purpose of J’s occupation, but J did not contribute directly to the purchase price at the time of purchase. However, she did contribute £5000 improving the property, as well as paying the outgoings on the property. G occasionally visited the property (to see his daughter and her children). M never visited the property.
The dispute arose because J argued that G had promised her that the house would be hers if she paid all the outgoings, ‘when she was ready’ . J argued that this established a common intention constructive trust in her favour, or, if that claim did not succeed, that she was entitled to sole beneficial ownership of the property through proprietary estoppel.
At first instance, the court had held that the evidence in the case did not leave room for a common intention constructive trust that would allow J to acquire an interest in the property beyond her contributions to the value of the property. Rather, the intentions of G and M were, in the eyes of the court, clearly that J not have an interest. Whatever one’s views as to the rules which ought to have been applied – proprietary estoppel, constructive trust, or resulting trust – this conclusion seem beyond doubt. That does not of course mean that J ought not to be entitled to an interest in the property, but prima facie at least, it is at the very least problematic to think that M may be deprived of the value a property which she had jointly funded without her every having either intended or promised that she would not have such an interest.
Nevertheless, the Court assessed in detail whether such an interest could be said to arise. The first instance judge had applied a resulting trust to calculate this. The claimant alleged that a resulting trust was inappropriate in the context given the comments of the Supreme Court in Jones v Kernott  UKSC 53 and also that the first instance judge had wrongly ignored her proprietary estoppel claim. We can break the court’s judgment down into the questions outlined above.
First, how does a common intention constructive trust operate in situations involving a third party? The court recognised on this question that in order to establish a common intention constructive trust, any intention to share had to be one common to the relevant legal owners if a third party is to ‘rebut the presumption’ (or in the words of the court, discharge the onus of showing an interest) that the third party is to have any interest in the land. Thus, per David Richards LJ, who gave the judgment of the court:
Furthermore, counsel for the claimant had argued that the court should impute an intention in this case (arguing that such was permitted by Jones v Kernott), as this would be the ‘fair’ thing to do in the circumstances:
The Court of Appeal rightly rejects this argument, on the grounds that the first instance court had in fact discerned the actual intentions of the parties, so that there was no scope for imputing any such intention. This is of course quite right, but it would have been helpful had the Court of Appeal responded not only that the facts did not permit the imputation of such an intention, but that imputing an intention at what is referred to as the ‘acquisition stage’ was expressly prohibited by Lord Walker and Lady Hale in Jones v Kernott, clearing up some ambiguity left after the decision in Stack v Dowden  UKHL 17.
Thus, the Court concludes, that common intention constructive trusts depend on intention. Where the intentions of the parties are known, there can be no scope for utilizing presumptions or resorting to ‘fairness’ to determine what those intentions should have been. Second, where a party is unaware of promises made by a joint tenant, they cannot be held to have shared the intention of that co-owner, so that the common intention was absent. This must be right. As the Court reasons:
Second, the Court then considered whether this case ought to have been treated as a constructive trust case at all. The Court holds that it ought not to have been:
The Court therefore concludes that the resulting trust is the appropriate vehicle in this case, but it is generous in terms of what is included in that trust, going beyond initial purchase price contributions to include mortgage contributions and apparently the outgoings on the property. This is not an uncontroversial way to calculate the relative shares, given that historically resulting trusts have appeared to have been confined to situations involving direct purchase price contributions. However, the tone of Lord Neuberger’s analysis of the resulting trust in Stack, and his attitude in Laskar v Laskar  EWCA Civ 347 suggests that the law may have moved on from such a rigid position.
Finally, on the question of proprietary estoppel, the Court gives this argument very short shrift. Thus:
This is an entirely sensible judgment (failure to more robustly rule out even the theoretical possibility of imputation aside). The claimant had a poor argument for sole beneficial ownership in this case, given the evidence. Nevertheless, it gives welcome clarity on a number of important issues, and as such, is a useful addition to the “post-Stack” jurisprudence.