A claim under the Trusts of Land and Appointment of Trustees Act 1996 is brought when there is a dispute in relation to a trust of land, typically in one of the following circumstances:
- determining whether a party has a beneficial interest in the property, usually where that party’s name is not on the legal title; or
- quantifying the beneficial interest share that co-owners or cohabitees are entitled to.
In such instances there may be a difference between the ‘legal owners’ (the parties named on the title) and the ‘beneficial owners’ (the people who are entitled to proceeds of the property on sale), or a diversion from the beneficial interest being held in equal shares.
What is a common intention constructive trust?
A common intention constructive trust (CICT) is a form of trust may arise where two individuals have a shared intention about the way that property is owned.
As opposed to an express trust, which would explicitly state how any proceeds of the property are to be distributed, a CICT may arise where it is not expressly written down. For example, a couple move into a property but only one of them has their name on the legal title; if the other person nonetheless makes contributions to the property, such as paying half of the mortgage or investing money in refurbishing the property, because the two people had a shared intention that they would both have an interest in the realisable value of the property, then this forms a CICT.
The starting presumption is that the beneficial ownership reflects the legal ownership. If that is challenged, then that is when this form of application may be necessary – say in the previous example if the legal owner refused to recognise the other party’s interest in the property, the parties may apply to the court seeking a declaration of their interest.
What is meant by detrimental reliance?
One of the key elements which needs to be proved in demonstrating a CICT is that the party asserting its existence has relied on something said or done by the other party, and then acted on that to their detriment, say in this example spending money on the property.
In legal terminology this is called ‘detrimental reliance’.
For the court to step in and prevent an unfairness which would arise from one party resiling on the earlier position which was presented, the offended party needs to demonstrate that they have acted in detrimental reliance.
Courts will not only consider financial contributions to be evidence of detrimental reliance, but there is not an exhaustive list and therefore each case will turns on its own facts.
A recent case – Uddin v Uddin [2026] EWHC 150(Ch), 2026 WL 00247551 – has highlighted the importance that intention, and acts in reliance of agreements can have when determining what a person’s interest in a trust asset is.
Summary
This appeal concerned a dispute between two brothers – Jamal and Fakar Uddin – regarding the ownership of a property brought under Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). The brothers had purchased the property together in 1999, with Jamal having his name solely on the legal title due to Fakar’s difficulties in obtaining a mortgage. The parties agreed it was always understood the house was purchased with each brother having a 50% beneficial interest.
In 2002, the brothers transferred the property to their joint names and set out an express declaration of trust to this effect. By 2007, however, the brothers had fallen out, and Jamal expressed his intention to relinquish his share in the property to Fakar. Again, this was an agreed fact – so no apparent dispute so far, although Jamal did resist that any effect was ever given to that provisional agreement. The agreement between the bothers covered other elements in addition to this property, but in May 2008 Jamal wrote an email regarding the transfer, saying:
“…I want to make sure that everyone is treated fairly in whatever is done or decided and it is for this reason, I have decided to postpone the signing of my part [of the property] over to Fakar until everything is fairly decided and everyone is happy.”
Later that month Fakar filed a TR1 (a form transferring the legal ownership of the property) which purported to bear Jamal’s signature, transferring the property joint names into his sole name.
Other proceedings regarding that document determined it was a forgery signed by Fakar and the property was returned to joint names.
In this case, Jamal sought a declaration that he had not given his beneficial share to Fakar, and that the property was still held as joint beneficial owners. The judge at first instance was not with Jamal, and found that the agreement in 2007 had created from the previous trust a new CICT in 2007 with Fakar being the sole beneficial owner of the property.
Jamal appealed that decision.
The appeal hearing
The appeal was brought by Jamal on two grounds: (1) the Judge was wrong in relying on detriment suffered by Jamal as part of his analysis; (2) the Judge erred in law and fact in concluding that there was any substantial detriment suffered by Fakar.
Outcome
The appeal Judge did find that the earlier decision was wrong.
The view was that the Judge should not have focused on any detriment suffered by Jamal in giving up his interest, but on what detriment Fakar had suffered in reliance of the alleged agreement he would be receiving Jamal’s beneficial interest, being:
“…the reliant detriment which makes it unconscionable for the promisor to go back on his promise”
The court held that the previous decision was wrong for considering concessions Fakar had made in the overall agreement between the brothers was sufficient to establish a CICT. They were part of a larger structured agreement.
Fakar also pursued that there were detriments he suffered after the 2007 agreement which were relevant – the appeal court was not persuaded in this regard and said they could not assume that any steps taken after the agreement were taken in reliance on the assurance given in 2007. The appeal Judge considered that the chronology of expenditure had not been “sufficiently explored” to form a conclusion.
For a CICT to have formed, Fakar, as the one seeking to establish its existence, would have to demonstrate an act to his own substantial detriment on reliance of the trust to prove this case – which he could not.
This appeal is a reminder that an oral agreement alone is insufficient for a CICT to come into effect at law, and those seeking to demonstrate detrimental reliance must evidence it arose as a direct consequence of any shared intention.
Contact Our Litigation & Dispute Resolution Team
Olivia Pearce is a Paralegal at Bishop & Sewell in our expert Litigation & Dispute Resolution team.
If you would like to contact Olivia, please call: +44(0)20 7091 2814 or email: opearce@bishopandsewell.co.uk
The above is accurate as at 27 February 2026.
