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Ambulation, Severance, and the Common Intention Constructive Trust

In the context of the decision of the UK Supreme Court in Jones v Kernott [2012] UKSC 53; [2012] 1 AC 776, this note looks at the way in which the interests under a common intention constructive trust can vary over time. It considers the role of s.53(1)(c) of the Law of Property Act 1925, which requires that any disposition of the beneficial interest under an existing trust must be in writing. It also looks at why, in cases where the disputed family home was originally held in a beneficial joint tenancy, the courts have not concerned themselves with the issue of severance. The answer is that each new division of the beneficial ownership occurs under a new, or newly refreshed, constructive trust: note the exemption in respect of “the creation or operation” of non-express trusts in s.53(2) of the 1925 Act. The change is not the result of a conventional disposition of an equitable interest, or (if the change is away from a beneficial joint tenancy) a conventional act of severance, by a beneficiary under the trust that formerly existed. The note also offers an explanation of the nature of the “ambulation” in operation in Jones v Kernott itself, where the parties initially held the beneficial interest in a joint tenancy but ultimately were entitled in the proportions of 9 to 1.