In Rochefoucauld v Boustead (1897), Lindley LJ said ‘that the Statute of Frauds does not prevent the proof of a fraud; and that it is a fraud on the part of the person to whom the land is conveyed as a trustee, and who knows it was so conveyed, to deny the trust and claim the land himself’.
Section 53(1)(b) of the Law of Property Act 1925 provides that ‘a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will’. S53(1)(b) indicates that in cases where there is a purported oral declaration of trust, it is not void without the element of writing, but merely unenforceable against the trustee. This requirement of…show more content… A more convincing argument is that Hodgson v Marks should be covered by a constructive trust since the case fits more comfortably with a constructive trust; there is no non-compliance of any statutory requirements (s53(2) LPA 1925) (although many commentators agree with this point, it is regarded as fallacious in Penner’s ‘Law of Trusts’ which claims that it is not possible to give effect to an express declaration of trust for the reason that not to do so would give rise to a fraud, and then say that the trust is constructive arising by operation of law); and it would benefit from the underlying aim of the constructive trust to do justice on a broad scale (Hudson, Equity & Trusts).
Equity enforces a constructive trust where someone has conducted themselves in such a way that it would be inequitable to allow the to deny the other party a beneficial interest in the land (Gissing v Gissing). The imposition of a constructive trust requires: a bargain or common intention; a change of position or detrimental reliance and equitable fraud or an unconscionable denial of rights.
The rise of the constructive trust has obscured the principle of enforcing the oral express trust despite the statutory formality provision
