Nilsson v Cynberg and subsequent agreements: changing common intentions

Daniel Wand, Barrister, 4 King’s Bench Walk

The issue as to how the beneficial ownership of land is determined is one which has frequently troubled the higher courts over very many years and continues to do so. As is well known, the fact of joint beneficial ownership can be recorded in a deced of trust and where such is absent, the courts can declare the existence of a common intention constructive trust (CICT) in order to regulate beneficial ownership.

The purpose of this article is to look more closely at the position where there is an established express declaration of trust followed by some change of position or understanding between the parties as to beneficial ownership. The law appeared to settle on a position that a CICT could arise after an express declaration and could supplant it, but this was called into question in Re Iqbal. The position has now been corrected by the High Court of Justice in Nilsson v Cynberg in which it was made clear that an express declaration of trust was capable of being overridden by a subsequent agreement in the form of a CICT.