Canada: Whose House Is It Anyway? The Latest on Resulting Trusts

Last Updated: June 16 2016
Article by A. Irvin Schein

Originally published at irvinschein.com.

At common-law, where a property is purchased with one person's money and title is put in the name of another, there is a presumption that the title holder holds title in trust for the person who contributed the money.

This principle was at the basis of a recent Court of Appeal decision in the case of Andrade v. Andrade.

Luisa Andrade, a widow and mother of 7, immigrated to Canada from Portugal in 1969 accompanied by her oldest daughter who was then 17. She worked as a cleaner for a number of years saving money for plane tickets to bring over the rest of the children.  They finally arrived in 1972.

Luisa stopped working to look after her children. One by one each of the children left school and began working while they were teenagers.  While they continued to live at home they gave their earnings to their mother to support the family.  This continued until each got married and moved out.

The family lived in a series of apartments but by 1974 Luisa had decided to buy a house. She found a house that would be suitable for her family and bought it for $58,500.  She signed the offer to purchase and borrowed a cash deposit of $1,000 (which she subsequently repaid).  For the most part the balance of the purchase was paid with 2 mortgage loans.

She arranged for title to the house to be put in the names of her oldest son, Henry, and her second daughter, Maria Jesus, both of whom were employed. At the time, Henry was 19 and Maria Jesus was 18.  They signed the mortgages.

Five years later, in 1979, at Luisa's direction, Maria Jesus transferred her registered interest to younger brother Joseph. The mortgages were renewed in the names of Henry and Joseph.

The house was large enough to include separate apartments. The apartments generated rental income which was collected by Luisa.  At one point Henry and his wife occupied one of the apartments and paid rent to his mother as well.

Joseph died in 2007. At the time he was married to the plaintiff in this action, Manuela Andrade.  In 2008, she demanded that the house be sold and that half of the sale proceeds be paid to her, as the beneficiary of Joseph's estate, saying that Joseph had been a beneficial owner of half of the house since it was purchased.

Luisa, supported by everyone else in the family, insisted that Luisa was actually the beneficial owner of the house and that Henry and Maria Jesus, at first, and Joseph, subsequently, only held title as trustees for Luisa.

During the litigation, Luisa passed away. The action continued to trial against Henry and Luisa's estate.

At trial, Manuela was successful. The trail judge ruled that at the time of the purchase, Luisa had no money of her own.  She had paid the expenses involved in the house with her children's money and not her own.  He found no evidence of a joint intention on the part of Luisa on one hand and Henry and Maria Jesus on the other hand that the latter two would hold title in trust for their mother.  The trial judge ordered that the house be sold, the half the proceeds be paid to Manuela, and that the estate pay Manuela over $237,000 in costs.

The matter was appealed to the Court of Appeal. The Court of Appeal reversed the decision, holding that the trial judge had made a number of mistakes.

Firstly, the trial judge erred in concluding that Louisa had no money of her own at the time of the purchase. In fact, she was the one who had borrowed the deposit and she was the one who paid it back.  The money that was in her account and used to pay the expenses relating to the purchase and subsequent expenses for maintaining the home may well have been provided to her by her children but the trial judge was wrong in concluding that therefore, this was her children's money.  Once her children gave their paycheques to Luisa, it became her money.

Secondly, the trial judge erred in concluding that in order to determine whether or not a trust existed, the court would look for an intention of both Luisa and her children that a trust would exist. In fact, only Luisa's intention was relevant since she was the one paying the money and directing that the title be taken in the names of other people.  There was ample evidence in this case that Luisa intended to be the beneficial owner of the property.  The evidence obtained from Luisa prior to her death was that she had directed title to be taken into the names of Henry and Maria Jesus because mortgage financing was needed to make the purchase and she could not qualify for a mortgage.  As both Henry and Mariah Jesus were employed at the time, they could and did qualify for a mortgage.  There simply was no other reason for this arrangement.

As a result, the presumption of resulting trust prevailed and Luisa's estate was declared to be the sole beneficial owner of the house.

Unfortunately, it took years and hundreds of thousands of dollars to get this straightened out. It probably also cost this family at least one relationship.  The lesson to be learned, as usual, is to make sure these types of arrangements are recorded in writing – if not right at the outset, then as soon as possible thereafter.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
A. Irvin Schein
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions