¶ 45. The majority reaches three subsidiary conclusions on the path to its ultimate holding on this issue. First, it concludes that the underlying transaction between the parties was actually an unwritten contract for a deed. Second, it concludes that the purchaser in such an unwritten contract for a deed generally is
*472not entitled to a return of payments made toward the purchase if the purchaser defaults while the seller remains ready and willing to perform. Third, it concludes that the dollars at stake in this case are not sufficiently high relative to the overall purchase price to take this case out of that general rule. I disagree with each of these conclusions, and respectfully dissent from the majority’s holding that defendant is not entitled to consideration in the equitable calculus for the downpayment she made to plaintiff.
¶46. I should say at the outset that I do agree with the majority that the relationship between the parties cannot be properly characterized as one between landlord and tenant. But I believe the majority’s own attempt to squarely fit the transactions before us into a recognized legal box is also unavailing.
¶ 47. Consistent with the trial court’s findings, and the evidence supporting them, the majority describes the dealings among the parties (including nonparty Oren) as follows:
[T]he parties intended that Oren and defendant would receive title immediately and give a mortgage secured by a promissory note for the installments. Oren was concerned about having his name appear on the deed due to outstanding tax debts, so a warranty deed, mortgage and promissory note were drawn up in defendant’s name only. Plaintiff delivered the signed warranty deed to defendant, but defendant never signed the promissory note or the mortgage. Because defendant could not pay the property transfer tax that would be due on recording, [defendant] never recorded the warranty deed. Plaintiff testified that, at this time, he considered himself the mortgage holder only.
Ante, ¶ 4.
¶ 48. The above does not squarely describe a contract to make a deed. A contract to make a deed contemplates continued ownership of property by the seller, occupancy by the buyer, and a future transfer of the property by deed. See Tromblay v. Daeres, 135 Vt. 335, 339, 376 A.2d 753, 756 (1997) (“These agreements are entered into, in many instances, where the prospective purchaser cannot raise the difference between the price of the property and an acceptable mortgageable balance. The prospective purchaser occupies the premises and makes the payments until the point of delivery of the deed and execution of *473the mortgage is reached.”); Prue v. Royer, 2013 VT 12, ¶ 21, 193 Vt. 267, 67 A.3d 895. In this case, the parties did not contemplate some future transfer. Defendant paid a substantial sum of money — $41,793 — as a downpayment, plaintiff delivered a deed, and Oren, who at that time was aligned with defendant in connection with the purchase of the property, began paying the monthly mortgage payments toward the yet-to-be-executed mortgage. The amount of the purchase-money mortgage was agreed-upon and satisfactory to the parties. Plaintiff understood himself to be a mortgage-holder only, and received his $833 monthly payments in accordance with the unexecuted mortgage. Oren, with whom defendant was living in the house at the time, assumed the property tax and insurance payments — actions consistent with the understanding of the transaction as an actual conveyance of the property subject to a purchase-money mortgage, albeit an unexecuted mortgage likely to run up against significant Statute-of-Frauds issues.
¶49. Our ability to categorize these transactions is further complicated by the parties’ shifting interpersonal relationships and the changes in their financial interactions that accompanied those. Within roughly a six-month period, Oren — an intended, but unnamed purchaser along with defendant — moved out, defendant and plaintiff became engaged in a relationship of sorts, plaintiff began paying the property taxes, and defendant, for the most part, stopped paying the agreed-upon mortgage payments. The trial court’s findings do not offer much clue as to whether the changes in the parties’ conduct with respect to the finances surrounding the property reflected a superseding agreement of some sort, a change in the parties’ individual or collective understandings of their respective obligations and rights, a breach of the existing agreement, an informal relaxation of plaintiff’s expectations and defendant’s obligations incident to their intimate relationship, or even outright forgiveness of defendant’s obligations during the period of their relationship.22
¶ 50. In the face of the above record, I cannot conclude as a matter of law that the arrangement between the parties amounted to a contract to make a deed. I fully acknowledge that I would be *474hard pressed to find a more fitting legal label for the above circumstances. Colloquially, I would simply call them a mess. Rather than trying to fit them into a specific category, and then applying the specific equitable framework applicable to that category, I would apply general equitable principles to the analysis of defendant’s unjust-enrichment claim.
¶ 51. Plaintiffs claim against defendant, as construed by the majority, is an equitable claim for payment. In evaluating plaintiffs unjust enrichment claim, we must determine “whether, in light of the totality of circumstances, it is against equity and good conscience to allow defendant to retain what is sought to be recovered.” Savage v. Walker, 2009 VT 8, ¶ 8, 185 Vt. 603, 969 A.2d 121 (mem.) (quotation omitted). The majority acknowledges that defendant got the benefit of living on plaintiffs property without paying rent for the benefit, and that under the circumstances it would be unjust to allow defendant to keep that benefit. Ante, ¶ 22 (citing Gallipo v. City of Rutland, 2005 VT 83, ¶ 41, 178 Vt. 244, 882 A.2d 1177). But that’s only part of the story. Defendant was living on plaintiff’s property in connection with some sort of agreement that ultimately fell through. In connection with that agreement, she personally paid plaintiff $41,793. That payment was part and parcel of the same transaction or set of transactions that gave defendant her occupancy of the home. The equitable balancing here requires consideration of the totality of the circumstances surrounding defendant’s occupancy of the property and the associated agreements and understandings. See Savage, 2009 VT 8, ¶ 8 (inquiry requires “ ‘a realistic determination based on a broad view of the human setting involved,’ rather than ‘a limited inquiry confined to an isolated transaction.’ ”) (citation omitted); see also Johnson v. Harwood, 2008 VT 4, ¶ 15, 183 Vt. 157, 945 A.2d 875 (unjust enrichment inquiry requires consideration of “totality of the circumstances”) (quotation omitted); Gallipo, 2005 VT 83, ¶ 41 (same). In this case, evaluation of the totality of the circumstances includes not only consideration of defendant’s possession of the property free of charge for a period of time, but also recognition of the sizeable sum of cash defendant paid to plaintiff in connection with their deal-gone-awry. Cf. Lalime v. Desbiens, 115 Vt. 165, 55 A.2d 121 (1947) (affirming trial court’s ruling in action in assumpsit offsetting defendant’s obligation to plaintiff and plaintiff’s obligation to defendant).
¶ 52. Even assuming that the parties here had a contract to make a deed, I could not join the majority’s opinion. The majority *475concludes that when a buyer enters into a contract for deed that is unenforceable due to the Statute of Frauds, that buyer acquires no equitable interest in the property by virtue of payments made toward the purchase as long as the seller remains willing and able to complete the sale. In so holding, the majority relies primarily on decisions of this Court from 1834, 1857, 1893, as well as the “nearly universal rule” reflected in the decisions of other courts. However, the majority’s holding creates an illogical divergence between our case law relating to the rights of a defaulting purchaser in an executed contract for a deed and the rights of a defaulting purchaser in an oral, unexecuted contract for a deed.
¶ 53. It is no surprise that the prevailing majority rule denies a defaulting purchaser any equitable claim for unjust enrichment for return of purchase monies paid in the context of an unwritten contract for a deed; the majority rule in the context of legally enforceable contracts for a deed likewise denies such relief to a defaulting purchaser. However, in cases in which the purchasing party to a contract for a deed defaults, this Court has long departed from the majority rule that would deny that party any equitable interest in the subject property, no matter how much the party had paid toward the ultimate purchase price. See Prue, 2013 VT 12, ¶ 30 (“Although Vermont has consistently treated a contract for deed as an equitable mortgage, it has been one of only a small minority of states to do so.”). In Prue, we reiterated that the defaulting purchaser in a contract for a deed builds an equitable interest in the property through regular payments pursuant to the contract, and is entitled to foreclose on that interest in the event of default — even the purchaser’s own default. Id. ¶¶ 30, 51, 68. The rationale for this approach is based on the functional similarity between a transaction in which the seller holds the title and the purchaser pays down the purchase price, and a transaction in which the seller conveys title to the purchaser and holds a mortgage. Id. ¶ 29 (citing Town of Weston v. Town of Landgrove, 53 Vt. 375, 378 (1881)). The equitable interest of the purchaser arises from the act of making payments on the contract for a deed, and does not depend upon the legal enforceability of that contract. See Tromblay, 135 Vt. at 339, 376 A.2d at 756 (“Since the payments [pursuant to a contract for a deed] are applied to the purchase obligation as they accumulate, an equity, though perhaps small, comes into being. It is this interest that is referred to as the equitable mortgage interest that requires foreclosure.”).
*476¶ 54. Given that Vermont has departed from the majority rule in connection with executed contracts for a deed, I see no rationale for adhering to the majority rule when a contract for a deed is unenforceable at law, and the majority does not provide one. As a leading commentator on the law of restitution has observed with respect to the availability of restitution claims for defaulting purchasers in the context of written and unwritten contracts: “[T]he two situations should be governed by a single rule, at least as to restitution of payments on the price.” 2 G. Palmer, The Law of Restitution § 6.6, at 47 (1978). Although Palmer advocates a rule that denies restitution to defaulting purchasers in both contexts, he acknowledges that logic supports consistent treatment of defaulting purchasers in these parallel scenarios. The majority provides no rationale for forging disparate paths in the signed-contract and unsigned-contract situations. The nineteenth-century Vermont cases involving unenforceable contracts for a deed relied upon by the majority are outdated and unhelpful in the context of Vermont’s modern divergence from the national pack on the parallel subject of enforceable contracts for a deed.23 And, in contrast to Vermont’s legal regime, the majority’s holding in equity gives seller relief akin to strict foreclosure, and buyer no avenue to mitigate the harsh effects of strict foreclosure. See Prue, 2013 VT 12, ¶ 57 (foreclosure statute provides opportunities to avoid strict foreclosure). I would realign our case law in law and equity concerning contracts for a deed by recognizing the purchaser’s equitable interest arising from purchase monies paid whether or not the underlying contract was legally enforceable.
¶ 55. Lastly, the majority acknowledges an exception to its general rule when the payments made toward the purchase price, on a percentage basis, are so high as to render the enrichment to seller unjust. Ante, ¶ 40. The majority applies this test by comparing the initial purchase money paid by defendant to the stated purchase price of the property and concluding that the ratio — 23.22% of the purchase price — was not so high as to render plaintiff’s enrichment unjust.
*477¶ 56. I disagree. Even without consideration of additional factors, $41,793 is a lot of money to most Vermonters, and represents nearly a quarter of the purchase price of the property. The majority’s comparison of the applicable percentage to that in Cobb does not persuade me otherwise, as there is no indication in Cobb that the Court considered the argument here or affirmatively concluded that the sums paid (and lost) by the purchaser did not represent an unjustly high percentage of the purchase price. Moreover, in this case, a third factor comes into play: very significant payments toward the purchase price by a third party to this litigation. Although the agreed-upon purchase price in this case was identified as $180,000, at the time of the 2004 transaction, plaintiff credited the purchasers (defendant and Oren) with Oren’s prior rental payments — a total of $39,486. Net of this credit, the actual sum due for the purchase of the property at the time of the 2004 transaction, was $140,514. Toward this sum, defendant paid $41,793, or around 30%. The balance due, to be secured by the unexecuted mortgage, was $98,720. From the summer of 2004 through around the end of 2007, Oren, who was aligned with defendant at that time, made monthly payments on the unexecuted promissory note. The trial court did not make findings as to the total payments made by Oren, but the 2009 judgment in the last round of litigation reflects that he made about 40 payments of $833, for a total of $33,320. It appears that the outstanding debt due to plaintiff on the property was closer to $65,401 — about a third of the original purchase price. From the perspective of plaintiffs windfall — he has received approximately two-thirds of the value of the property that the courts have now allowed him to keep without paying anyone back — the unjustness of the overall enrichment seems clear. I do not mean to suggest that defendant is entitled to be repaid for Oren’s contributions, but the fact of these contributions, undertaken at a time when defendant and Oren were living together in the house and aligned vis-a-vis plaintiff, is a relevant consideration in the calculus concerning the unjustness of plaintiffs enrichment.
¶ 57. I concur in the majority’s unjust-enrichment analysis concerning defendant’s equitable obligation to plaintiff in connection with her occupancy of the property. Defendant was not entitled to five rent-free for a period of years while plaintiff waited for her to finish paying him for the purchase of the property, and the cost of the property taxes on the property is *478one of the factors built into the determination of a reasonable monthly rent. And I concur in the majority’s affirmance of the trial court’s recognition of a credit in defendant’s favor for certain improvements. But to the extent the Court treats defendant’s $41,798 payment to plaintiff as a nonrecoverable investment, not to be considered in the overall equitable balance, I respectfully dissent.
¶ 58. I am authorized to state that Justice Burgess joins this concurrence and dissent.
Moreover, plaintiff’s actual delivery of a deed to defendant alongside defendant’s unsuccessful subsequent request to the trial court in 2009 to order plaintiff to deliver a deed to her adds an additional element of inscrutability to these transactions. See ante, ¶ 7 n.3.
I acknowledge that one of the three unenforceable-contract cases cited by the majority post-dated this Court’s statement concerning enforceable contracts in the Town of Weston decision. However, the Court’s dicta in that case does not address the tension between the rule announced in the Town of Weston decision and the Court’s previously articulated approach in the unenforceable-contract setting.