Resulting trusts arise when title to property is transferred and the provider of property does not intend to benefit the recipient. The trust thus identified is a bare trust under which the essential duty of the legal owner is to act in relation to the property as the beneficiary directs. Resulting trusts are often described by distinguishing them from their siblings, express trusts and constructive trusts. Unlike express trusts, which give effect to the settlor’s positive intention to benefit the recipient, a resulting trust arises in the absence of the provider’s positive intention. Whilst the juridical basis of some constructive and resulting trusts may be contested, it is nonetheless certain that constructive trusts are raised in response to equitable wrongdoing such as breach of fiduciary duty, and that resulting trusts are not a proprietary response to equitable wrongs.

Equitable remedies grew out of the Chancellor’s aim to put both parties in the positions that reflected the merits of the case, the parties’ circumstances and circumstances of any other persons who might be affected by his orders. The Chancellor’s judgment was always discretionary, and might call for both the plaintiff and defendant to take remedial steps. The Chancellor’s court was not shy about the need to unravel complex problems. There is a real sense in which the court did whatever was necessary to achieve an appropriate balance between the parties. That flexible attitude still informs modern equitable remedies. Remedies are important in every case extracted in this book. This chapter merely attempts to provide the flavour of equity in action, to demonstrate equity unravelling complex interactions between parties, imposing obligations on the plaintiff as well as on the defendant, and taking into account the interests of third parties. The cases exhibit many of the objectives of equitable remedies, such as compensation, disgorgement, restitution, reformation, coercion and vindication.

Resulting trusts arise where property is disposed of in circumstances in which a provider of property does not intend to benefit the recipient. The recipient holds the property on trust for the provider. The property is said to ‘result back’ to the provider. This does not mean that the equitable interest in the property returns to the provider. What happens is that when the legal title to the property vests in the recipient, a new equitable interest is created in favour of the provider. Resulting trusts differ from express trusts in that an express trust gives effect to the settlor’s positive intention to benefit another by way of trust, whereas a resulting trust gives effect to the provider’s negative intention – an intention not to benefit the recipient. The resulting trust resembles a constructive trust in that it arises by operation of law but differs in that its imposition may be negatived by evidence of the provider’s actual intention. Resulting trusts are said to be either ‘presumed’ or ‘automatic’. Presumed resulting trusts can be rebutted by evidence that the provider of the property intended to benefit the recipient or to create an express trust in favour of a third party

This chapter considers ownership of the family home which is often the most significant asset owned by the parties. Where a couple are not married or in a civil partnership ownership has to be determined through principles of land law and trusts. There are two approaches eithera resulting trust or a constructive trust and both are considered in detail although the resulting trust is used far less frequently today in relation to the family home. The resulting trust is based on contributions to the purchase price whereas the constructive trust is based on intention of the parties which can either be implied or express. Where property is owned jointly the court presumes equal ownership of the beneficial interest but this can be rebutted. There is far more flexibility with a constructive trust both in finding intention and also in quantification of the shares but the outcome of cases is far more uncertain particularly where the courts impute the intentions of the parties as to the size of the shares. Rights in the family home can also arise under proprietary estoppel.