The nature of equitable property revisited

Journal article

This article revisits the long-running debate as to the nature of equitable property and of the trust. It aims to clarify and develop two claims: first, there is a fundamental formal and conceptual difference between equitable property rights and legal property rights; second, it is a mistake to understand the trust as involving a split between legal and equitable ownership. The article argues that, whilst there may be an intuitive appeal to thinking of the holder of an equitable property right as having a direct right in a resource, or to thinking of a beneficiary of a trust as having a form of ownership, such a view misunderstands both the form of, and justification for, the third party effects of equitable property rights and of trusts. The article considers three examples of appellate decisions where the debate as to the nature of equitable property rights had practical implications, and advances four arguments in favour of its two claims. It concludes with five final thoughts as to how progress can best be made in understanding the nature of equitable property.

Authors: McFarlane, B

• Publication status: Published
• Peer review status: Peer reviewed
• Publisher: UCL Press
• Journal: Current Legal Problems
• Volume: 79
• Publication date: 2026-04-21
• Acceptance date: 2025-12-10
• EISSN: 2044-8422
• ISSN: 0070-1998
• Language: English