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Proprietary Estoppel

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Proprietary Estoppel Proprietary Estoppel Key features PE is an equitable informal mode of creating any kind of interest in land. Ramsden v Dyson (1876), Kingsdown: “If a man, under a verbal agreement with a landlord for a certain interest in land, or … under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord, and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation.” Willmott v Barber, Fry initially laid out strict test (C makes mistake as to legal rights; C performs acts in reliance on mistake; D knows of the existence of his own inconsistent right; D knows of C’s mistake; D encouraged C’s mistake or abstained from asserting his legal rights). Oliver in Taylors Fashions said these are not strict rules – the modern broader question is whether in “all the circumstances … it was unconscionable for [D] to seek to take advantage of the mistake which, at the material time, everybody shared.” Cobbe and Thorner adopt this. PE, unlike other estoppel, can found a claim for an interest in land (a sword, not just a shield) – Crabb v Arun DC (1976) (Denning: “proprietary estoppel … does give rise to a cause of action”). PE can also be defence to O trying to enforce strict rights. PE is based on preventing unconscionable conduct - Taylors Fashions Ltd v Liverpool Victoria Trsutees Co Ltd (1982) (Oliver: “equitable jurisdiction to interfere … where the assertion of strict legal rights is … unconscionable”) - Gillett v Holt (2001) (Walker: “the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the [PE] doctrine”) In a PE claim, after facts satisfying requirements arise, an inchoate equity arises (this entitles C to go to court); when C makes a claim, the court decides how best to use discretion to satisfy the equity. It will not always be a proprietary remedy, and where it is may not be the one promised. It is important to identify whether an estoppel (inchoate equity) is proprietary or personal, as this will impact dealings with third parties. PE raises concerns – dangers of subverting formality rules, restricting testamentary freedom (eg Gillett – PE prevented from changing will), overuse in unprincipled manner (Walker in Cobbe noted it must not be used as a “wild card” whenever court doesn’t like a litigant who has law in his favour). Elements of a PE claim Broadly, PE requires a representation/assurance made to C + reliance by C + detriment to C as result of reasonable reliance (Walker, Thorner v Major (2009)). Factors may impact each other (eg quality of assurance may impact reliance; reliance may be connected to detriment; if ‘mutual understanding’ required, may depend on other elements) – PE must be looked at “in the round” with aim to prevent unconscionability (Walker, Gillett). 1. Representation or assurance made to C that they have or will have an interest in the land Assurance can be made passively – where O stands by, allowing C to act to his detriment, while knowing C is acting in belief that he has the interest, O is deemed to acquiesce in the interest and failure to correct C is representation raising estoppel. - Thorner v Major (2009) (“standing by in silence serves as the element of assurance”) - Ramsden v Dyson (1876) (Cranworth – eg stranger building on O’s land assuming it is his, O aware; O has “duty to be active and to state [O’s] adverse title … dishonest … to remain wilfully passive … in order afterwards to profit”) For passive assurance, O must be aware of the reliance and detriment – otherwise, it is unlikely to be unconscionable; however, it is objectively assessed (Thorner) - SS for Communities & Local Government v Praxis (2015) (NI) (no PE b/c O never encouraged C’s mistaken belief in lease, even though C spent $ refurbishing) - Brinnand v Ewens (Nourse: “you cannot encourage a belief of which you do not have any knowledge”) - Crabb (O didn’t know C intended to sell land, but knew general intent to use as access = sufficient knowledge) - Matharu (knowledge of detriment in pure acquiescence cases is needed – knowledge of expectation alone ≠ unconscionable) Whether O knows about his own rights also seems relevant – in Taylors, O unaware C’s claim had become unenforceable, so found not unconscionable – but if O encourages the expectation this will be harder to make a defence. Where the assurance is active, the representation must objectively be intended to be taken seriously and relied on (Thorner, Hoffmann); the representation must be ‘clear enough’ in the given context (Thorner, Walker). - Wayling v Jones (1995) (D bought hotel, told P it would be his in D’s will; D sold, bought new hotel – express, clear promise to P to change will, forgot, died; P had estoppel) - Gillett v Holt (2001) (statements over several decades that G would get farm; together amounted to sufficient assurance over time that K intended it to be G’s) - Murphy v Burrows (2004) (assurances were equivocal ≠ estoppel) - Thorner v Major (2009) (‘tacitern’ farmer; handed D life insurance policies for death duties – this created expectation of inheritance, not mere hope – context significant) - Cobbe v Yeoman’s Row (2008) (flats bought for development; developer secured PP, L reneged on promise to sell – HOL said insufficient assurance, oral promise not specific enough in context of commercial world (not binding agreement under s 2 LPMPA)) § Saunders v Al Himaly (2017) (PE rejected by trial judge, b/c commercial agreement not binding, on basis of Cobbe) - Matchmove Ltd v Dowding (2016) (A promised to sell B a plot + meadow, conducted as if binding; B paid, A tried to backtrack; trial judge said PE, CA no comment) § Distinguished from Cobbe b/c intended to be binding, not just agreement in principle to be modified - Hoyl Group Ltd v Cromer Town Council (2015) (basement lease, internal stair and external access; representations of external access, T’s mistaken belief of formal right of way not corrected – sufficient assurance through passive and express assurance) - Burton v Liden (2016) (payments to mortgage for long time ‘towards the house’, necessary to meet payment – sufficiently clear assurance of interest) - West End Commercial Ltd v London Trocadeo (2015) (said it is required O makes an assurance that C is to get a property right not mere personal right relating to land) - This is the only case making this point; no authorities confirm or deny - Shirt v Shirt (2012) (son ≠ use PE for possession of family farm because oral assurances made were not clear enough – vague, unspecific) Cobbe notes in commercial contexts, more specific assurances will likely be needed; the more specific the right claimed, the more specific the assurances must be (Praxis). Domestic and commercial claims still use same principles (Whittaker v Kinnear). The assurance must be as to reasonably identifiable land (Thorner, Praxis) – no need for precise scope, but reasonably clear which land the assurance applies to. Thorner recognised it was okay if the land increased or decreased in size over the years, as long as it could be identified on the day of enforcement. The assurance can be in any form (Flowermix v Site Developments (2000)) (contract void for uncertainty as to land extent, effective through PE). Objective assessment means C can claim even if O did not intend to make an assurance, as long as the reasonable person would believe one was made; however, if O does not know of C’s belief in assurance and does nothing ot encourage it, it will be hard to establish - Slater v Richardson (D unaware of C’s belief, did nothing to encourage ≠ estoppel) - Creasey v Sole (court should be sceptical of PE claim if only C’s uncorroborated story) Only the interests of the person who made/acquiesced in the representation are bound by the estoppel (eg where co-trustees, estoppel cannot be generated over legal estate unless all trustees acquiesce/represent; if just one, may be over their beneficial share) - Preedy v Dunne (2016) - Wodzicki v Wodzicki (2017) (PE failed – father’s promise did not also bind step-mom) The assurance must be such as to generate unconscionability if withdrawn - Murphy v Burrows (2004) (detriment in reliance on equivocal assurance not sufficiently substantial to say withdrawal is unconscionable) - JT Developments Ltd v Quinn (1991) (D made offer of lease to C, C improved premises, D withdrew offer; held unconscionable, PE entitled to lease) - Crabb v Arun DC (O encouraged the expectation by building gate, allowing access) - Salvation Army Trustee Co Ltd v West Yorkshire MCC (1980) (O acquiesced in C’s letter informing O detriment would be incurred = PE) - Cf. Cobbe (both parties knew no contract was made) Where the assurance is about property left in a will, to preserve testamentary freedom a mere statement of intention to bequeath is insufficient; repeated assurances over substantial period will found a claim (Gillett; Re Basham). 2. Reliance by C on O’s representation or assurance (reliance must be reasonable – Thorner) If representation and detriment can be shown, a sufficient causal link of reliance between them is presumed – it is up to O to disprove reliance - Greasley v Cooke (1980) (Denning: presumption of reliance; O could not disprove presumed reliance) - Neuberger doubted the reversal of burden in Steria Ltd v Hutchinson
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