What is a Resulting Trust - Canada


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The recent British Colombia Supreme Court case of Borkenhagen v. Kessler (FN 1). It is a worthwhile read for those interested in area of estates and trusts because it reviews the basic tenets of resulting and constructive trusts. “I don’t care who paid for the property – it’s in my name.” But that’s the middle of the story – let’s start at the beginning.

Situations arise where legal title may be in one person’s name , but the courts presume there was a decision to create a trust so that the equitable or beneficial ownership really belongs to another. Let’s take a look at the recent British Colombia Supreme Court case of Borkenhagen v. Kessler (FN 1). It is a worthwhile read for those interested in area of estates and trusts because it reviews the basic tenets of resulting and constructive trusts.

Mr. and Mrs. Borkenhagen purchased a rental property which they agreed to rent to Mr. Borkenhagen’s elderly aunt, Mrs. Kessler. The terms of the agreement were that the aunt would pay a modest rent, approximately equivalent to the rent that she was paying in her previous apartment, and the aunt could remain at the rental property for as long as she liked. Prior to the purchase of the rental property, it was discovered that the bylaws and strata had a restriction requiring anyone who lived in the unit to be an owner and over the age of 55. Neither of the plaintiffs was over the age of 55 and as such the aunt was the only one that could satisfy the requirements for ownership. It was decided that all three parties would go on title to the property as joint owners. The relationship between the parties soured, the aunt severed the joint tenancy and asserted that she was the legal and beneficial owner of 1/3 of the rental property. The plaintiffs on the other hand, sought a declaration that they were the sole and legal beneficial owners of the property.

The parties each relied on Kerr v. Baranow (FN 2), which dealt with the issue of unjust enrichment and the “common intention” resulting trust. A resulting trust is created when title to a property is in the name of a party that did not provide any value for the property, and that party is then required to return the property to the true owner (FN 3). The Court determined that the focus of analysis with respect to a resulting trust is the actual intention of the transferor, in this case, the plaintiffs. On the review of the evidence, the Court found that the plaintiffs’ intent was that their aunt would occupy the rental unit as a renter and not as an owner. The aunt did not contribute to the purchase price of the rental property and did not assume any of the normal obligations associated with ownership. The purpose of the aunt’s title was simply to satisfy the strata requirements. The Court found that in this instance, there had been a gratuitous transfer and the presumption of a resulting trust had not been rebutted. As such, the Court found that the aunt held her 1/3 interest in trust for the plaintiffs, reaffirming that the concept of a resulting trust stems from the idea that people make bargains – not gifts.

The Court arrived at the same result when applying the principles of unjust enrichment and constructive trusts. A constructive trust is imposed when there has been unjust enrichment, regardless of the intention of the parties. Unjust enrichment occurs when there has been (1) an enrichment to the defendant; (2) a corresponding deprivation to the plaintiffs; and (3) there is an absence of any juristic reason for the enrichment. The Court found a constructive trust in favour of the plaintiffs based on the fact that the plaintiffs had paid all of the purchase money, and that the aunt did not have any obligations that an owner would normally have, such as paying property taxes. Therefore the aunt would be unjustly enriched if she was allowed to retain her 1/3 interest in the property. The Court did find that there was an agreement between the parties which permitted the aunt to remain at the property until she wished to leave, but it did not amount to a juristic reason for the enrichment nor the defendant’s acquisition of title to the property.

Every situation is fact specific and you might think that your facts resemble this case enough to jump to a legal conclusion. That would be a mistake. This short review of the law is not meant to be legal advice. In our experience dealing with these cases, the Court’s decisions turn on the specific facts. If the reader has a legal question dealing with a similar problem the reader would be well advised to seek out competent legal counsel to determine the best course of action.

FN1 2012 BCSC 467I
FN2 2011 SCC 10
FN 3 Pecore v. Pecore, [2007] 1 S.C.R. 795. The Supreme Court of Canada defined a resulting trust as follows: “A resulting trust arises when title to property is in one party’s name, but that party, because he or she is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner. While the trustee almost always has the legal title, in exceptional circumstances it is also possible that the trustee has equitable title.” Pecore is the seminal case that deals with the presumption of a resulting trust that arises when children hold joint accounts with their elderly parents. The presumption is that upon the parent’s demise the money does not pass by right of survivorship to the child – rather it is held in a resulting trust for the estate.

ABOUT THE AUTHOR: Charles B. Wagner and Liliana Ferreira
The authors are Charles B. Wagner and Liliana Ferreira. Charles is a partner and Liliana is an associate at Wagner Sidlofsky LLP. This Toronto Law office is a boutique litigation firm whose practice is focused on estate, commercial and tax litigation.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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