The difference between common intention constructive trusts and proprietary estoppel has been described as ‘illusory’ (Hayton). Do you agree with this statement? Consider how the case law has developed and give reasons for your answer.

In his article ‘Equitable Rights of Cohabitees’ Hayton suggested that the distinction between common intention constructive trusts and proprietary estoppel has, over time, come to be but illusory and goes on further to propose that since the general direction of the development of the law has been to embrace the principle of preventing and remedying unconscionable conduct regardless of whether the claim brought before them was originally brought under the concept of a constructive trust or proprietary …show more content…

Nevertheless, at a first glance, common intention constructive trusts and the doctrine of proprietary estoppel appear to have an overwhelming amount of similarities. The aim of both instruments is to enforce an informal promise between the legal landowner and the claimant. Both rely upon a promise which has been relied upon and a detriment on the part of the claimant resulting from the claimant’s reliance of the promise.

The existing body of case law has too frequently noted the similarities between the two concepts and their practical applicability in the past. This was first explicitly recognised in Lloyds Bank v Rosset. Similarly, in Yaxley v Gotts[2000], the court ruled in favour of the claimant in a claim brought under proprietary estoppel, mentioning obiter that the same conclusion would have been reached should the claim have been brought as resulting from a common intention constructive trust.

In Lloyds Bank v Rosset Lord Bridge held that a common intention to share the equitable title could only be inferred for a claimant if they had made a direct financial contribution to the acquisition of the property (be it to the purchase price, the payment of the deposit or the mortgage payments). However, Lady Hale in Stack v Dowden [2007] commented obiter that the bar was set ‘too high’ in this regard. In Abbott v Abbott she further developed the notion of the need to afford greater flexibility to the type