Does the presumption of resulting trust apply in real estate transactions?

British Columbia, Canada


The following excerpt is from Lafavor v Nelson, 2019 BCSC 1903 (CanLII):

In Virk v. Pannu, 2006 BCSC 921, aff’d Bajwa v. Pannu, 2007 BCCA 260 [Bajwa], decided by way of summary trial, the court also found the presumption of indefeasible title had not been rebutted by the presumption of resulting trust. In that case, the plaintiffs and the defendant purchased a property as joint tenants. The plaintiffs provided the down payment. The balance of the purchase price came from a mortgage. The defendant did not contribute any money towards the purchase, but was a co-covenantor on the mortgage. As the trial judge noted, if a default occurred under the mortgage, the defendant solely could have been held responsible for any shortfall. The evidence also established that he was the “driving force” in terms of finding property, engaging in negotiations for its purchase, and then facilitating its purchase by way of the mortgage. This was sufficient to demonstrate his joint tenancy was not gratuitous and that value was given for his legal interest in the property. This defeated the presumption of a resulting trust.

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