Certainties

Certainties

Types of Property

Property refers to anything that a person can own. 

1. Realty

This is freehold land. 

2. Personal property (personalty) 

Personal property is all property apart from freehold land. For example: 

- Chattels (choses in possession). These are tangible things like jewellery, cars and furniture. 

- 'Choses in action'. These are intangible things which must be recovered by bringing a claim in court. This category can include company shares. copyrights and bank accounts. 

- Leasehold land. 

Transfers of Title when the Donor Owns the Legal Title

Land

The transferor must execute a deed. Section 52(1) of the Law of Property Act 1925 states that all conveyances of land are void for the purpose of creating a legal estate unless made by deed. 

A deed is a document that satisfies section 1 of the Law of Property (Miscellaneous Provisions) Act 1989: 

(a) The document is stated to be a deed or is signed as a deed; 

(b) The person making the deed signs the deed in the presence of a witness, who also signs it. 

Where the land is registered, the deed is Form TR1, as issued by the Land Registry. 

The deed must also be sent to Land Registry to register the transferee as the new legal owner. 

Shares in a Company

The basic method of transfer is that the transferor to sign the form of transfer and for this to be sent to the company along with the existing share certificate. The new shareholder is then registered in the Registrar of Members, and the legal title passes to him when registered. The company sends the new shareholder a certificate in his name. 

Money

No writing is necessary. Transfer of monetary rights is effected by delivery of the note to the transferee. 

Chattels

Title to chattels (choses in possession) is passed by physical delivery of the asset to the transferee, or by a deed (Jaffa v Taylor Gallery Ltd). 

Requirements for the Creation of an Express Private Trust

Methods of Creation of Express Trusts

There are two methods of creating an express trust: 

By declaration; and 

By transfer. 

The Three Certainties

A valid trust can only exist if the settlor intends to create a trust and defines the relevant property and the beneficiaries clearly. This statement translates into the three certainties, originally stated in Knight v Knight. The three certainties are: 

1. Certainty of intention.

2. Certainty of subject matter. 

3. Certainty of objects. 

Certainty of Intention

Owners of property may dedal with it in a variety of different ways. A trust can only come into existence if this was the settlor's intention. It is therefore necessary to examine the words used by the settlor. The settlor intends to create a trust if they want to subject the trustee to a legally binding obligation to deal with the property in a certain way. 

Paul v Constance

Mr Constance frequently stated that £900 deposited into his bank account was 'as much yours [Mrs Paul's] as…