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constructive trusts, Express Trust, Resulting trusts, trust, Trustees

Reconstructive memories

Families are complicated.  Family agreements and arrangements all the more so.  Almond v Read highlights the consequences of family arrangements that are not recorded in writing.  The background facts are not disputed.  Ms Almond purchased land in Drury.  Two dwellings were built on the Drury property (the Property), one was occupied by Ms Almond and her daughters, the other by Mr and Mrs Read (Ms Almond’s parents).   Mr and Mrs Read paid $200 rent per week to live in the minor dwelling.

Each family member’s account regarding how the funding of the Property differed.  Ms Almond’s brother Chris Read gave evidence that it was the trust and confidence he had in his father Mr Read was critical to his investment in the property, which he expected to be reflected in each party’s share in the equity in the property.

In 2009 following the death of Ms Almond’s father, her brother moved into the house his parents had occupied to support his mother.

Bruce Read contributed $130,000 to the purchase of the Property, Ms Almond borrowed $60,000 from ASB and Mr and Mrs Read contributed $10,000, which was used for the deposit.  Following settlement $8,000 was refunded to Ms Almond.  Mrs Almond paid for the building of her dwelling and Mr and Mrs Read paid for the dwelling that they lived in.  Other contributions were made by the parties and contributions were made be Ms Almond’s brother Chris Read.

The High Court found that there was a common intention that each party would own an interest in the property that was in proportion to their contribution.  Bruce Read’s share was 26.58%, Mrs Reid was entitled to 24.8%, Chris Read was entitled to 23.88% and Ms Almond was entitled to 24.74% (which reflected contributions Bruce made).

Ms Almond remained of the view that it was intended that she would remain the sole owner of the property and that her parents’ interest was a life interest.  The question for the court was what, if anything, Ms Almond should be paid for caring for her parents.  Ms Almond argued that Bruce’s contribution was a loan to their parents as was the advance from her brother Chris.  Careful consideration was given to the solicitor’s file notes that were made contemporaneously with the purchase.  Correspondence between Mrs and Mr Read regarding their interest in the purchase and the Council was also considered as was Mrs Read’s will, which treated the minor dwelling as her home and a property that she had a legal interest in.  Interestingly, the court put little stock in the absence of contemporary family documentation.

The Court of Appeal was satisfied that the conclusion reached in the High Court was correct and there was an institutional constructive trust in proportion to each party’s contributions.  There was no finding of a “family care arrangement” that displaced the financial contributions.

The takeaway message is simple – any contributions to the purchase of a property from a non-owner must be accurately recorded and tit s essential that there is an agreement recorded all parties’ expectations and the nature of the legal arrangement.

 

 

References

  • Almond v Read [2019] NZCA 26
  • Read v Almond [2105] NZHC 2797

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