The common intention constructive trust, 'hard-nosed property rights', and Baroness Hale's balancing act in Jones v Kernott

This paper uses Jones v Kernott as a starting point to consider the controversial distinction between inferring and imputing an intention, which has been debated since the early 1970's yet will "hardly ever matter" in practice. This controversy may seem baffling, given the arbitrary, complex state of current law, and "the continued failure of Parliament" to act on this issue. The paper seeks to explain the controversy by exploring English property law's underpinning construction of property rights as inviolable or even "sacred". When non-consensual transfers of property occur (often as a result of judicial attempts to provide fair outcomes in individual cases) they have to hidden by obfuscatory devices, which once fitted into property law's normative framework dictate results according to their own logic. Thus, the findings of fact in individual cases have to be interpreted so as to provide ostensible compatibility with the orthodox, institutional understanding of the common intention constructive trust. Nevertheless, the paper argues that the common intention constructive trust can still be a useful vehicle for the just resolution of disputes between cohabitants.