Express Agreement Trusts

An explicit agreement, when presented in a formal document and signed by “A”, clearly provides much better evidence to show the intentions of each party. But most of the time, intentions are only expressed in conversations, which amounts to the word of one party against the other. If this is the case, it is also necessary that B (the person claiming a share of the immovable property) has acted to his detriment (inconvenience) or that he has changed his position on the basis of the agreement, agreement, understanding or commitment. An explicit trust is a trust created “in explicit terms and generally in writing, unlike a law derived from the conduct or transactions of the parties.” [1] Ownership is transferred from a person (Trustor, Settlor or Grantor) to a buyer (called a trustee) who owns the property for the benefit of one or more persons designated as beneficiaries. The mandatary may distribute the property or income from this patrimony to the beneficiaries. Express trusts are often used in common law jurisdictions as methods of custody or asset enhancement. “The first fundamental question, which must always be resolved, is whether, whatever conclusion to be drawn from the conduct of the parties in the context of the community of the house as a domicile and the management of their common affairs, an agreement was reached at any time before the acquisition or, exceptionally, at a later date. Agreement or agreement between them that the property must be shared advantageously. I believe that the conclusion of an agreement or an agreement to be shared in this sense can only be based on evidence of explicit discussions between the partners, however imperfect they may remember and how imprecise their conditions have been. It is only necessary, following a finding to the contrary, that the partner who asserts a right to an economic interest against the partner entitled to the succession proves that he acted to his detriment or that he has significantly changed his position in confidence in the contract in order to create a constructive trust or a right to loss of ownership. In stark contrast to this situation, the other, if there is no evidence on which the conclusion of a partition agreement or agreement is based, if it would have been reasonable for the parties to enter into such an agreement if they had applied their ideas to the matter and where the court must rely entirely on the conduct of the parties, both as a basis for concluding a common intention to share the immovable property advantageously and as a behaviour on which constructive trust is based.

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