Trusts of the family home: it’s not just the judges who are confused

Abstract

The decision of the Court of Appeal in the recent case of O’Neill v Holland was, on the one hand, a useful reminder that detrimental reliance is always part of the necessary ingredients to establish a constructive trust of the family home. “detrimental reliance is always part of the necessary ingredients to establish a constructive trust of the family home”. The Court of Appeal agreed that the District Judge, at trial, had misdirected herself on the issue of detrimental reliance and had not appeared to realise that it was a key attribute required to underpin a constructive trust. On the other hand, the approach taken by the Court of Appeal in its decision could itself be clearer and it is suggested that, when the surface of the decision is scratched away, the decision does little to clarify the principles in this area. Rather oddly, it might be an instance of where going back to first principles is not necessarily the best approach to take.