Proprietary Estoppel Research Articles

Clear as mud: Proprietary Estoppel after Guest v Guest

Abstract The dust should now have settled since the Supreme Court’s landmark decision in Guest v Guest (2022). However, in exploring recent case law, this article exposes that the rules applied to decide proprietary estoppel cases remain as uncertain as ever. Some commonality can be identified, but only in the persistent favouring of promisors over promisees. This article criticises the practical and theoretical underpinnings of proprietary estoppel and proposes further reform. In particular, the article draws new links from the doctrine of secret trusts to suggest a more just and certain basis for proprietary estoppel’s future application

The Propriety of Proprietary Estoppel: What Guest v Guest Reveals About the State of Equity

The Propriety of Proprietary Estoppel: What Guest v Guest Reveals About the State of Equity

Promises in Equity and at Law: Proprietary Estoppel after Guest v Guest

Under the doctrine of proprietary estoppel, a promise made to another that they will acquire a right in the promisor's land can give rise to a legal remedy, if the promisee has detrimentally relied on that promise. In Guest v Guest, the Supreme Court was asked to settle a long‐running debate about how judges should go about fashioning that remedy. The Court held that the claimant's award should be whatever is required to alleviate the unconscionability constituted by the promisor's repudiation of their promise. How that is to be determined will vary from case to case, but Guest v Guest makes clear that the starting assumption is that the promise will be enforced. This note sets out the approaches of the majority and the minority, and then discusses a number of issues raised by this decision.

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Proprietary estoppel and the position of the stranger

Abstract This article examines the position of a stranger in two principal scenarios, and the implications for strangers of the possible outcomes to these scenarios. First, if A makes a promise to B that C will receive A’s property if B advances monies to A, can the promise be enforced to benefit C who is a stranger to the promise? Secondly, if A makes a promise to B that B will receive A’s 50% share in a property if B advances monies to A, but A then enters into a declaration of trust with D (with whom A then purchases the property), is B bound by that declaration (to which B is a stranger)? Is B then excluded from a constructive or resulting trust claim, and left solely with a proprietary estoppel claim?

Distribution of property at the termination of de facto unions (marriages by cohabitation/repute) in some African countries

Abstract Many African countries have ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Article 16(1) of CEDAW provides for, inter alia, the right to equality in a marriage. The drafting history of Article 16 of CEDAW shows that the delegates agreed that the whole provision was applicable to women whether or not they were married. In its General Recommendation No. 29 on Marriage and Family Relations, the CEDAW Committee provides interpretive guidance for states on Article 16 and, inter alia, highlights the economic hardships that women face at the termination of de facto unions or relationships (marriages by cohabitation) and urged state parties to protect the economic rights of women in such relationships. African countries have approached the issue of de facto relationships in different ways. These approaches have also determined the manner in which the economic rights of parties to these relationships are protected. In some countries such as Malawi and Tanzania, legislation recognizes such unions. In Kenya, although these unions are not recognized by legislation, they are recognized by courts. Courts have also recognized some economic rights of parties therein. In Seychelles, a ‘hybrid’ approach has been followed in terms of which these rights are protected in both legislation and case law. In Uganda, South Africa, Zambia, Ghana, Zimbabwe, Lesotho, Swaziland, and Rwanda, de facto unions are neither recognized in legislation nor in case law. However, courts have invoked principles from other branches of law such as the law of equity (constructive trusts and proprietary estoppel), partnerships and the right to property to protect the economic rights of the parties in these unions. In this article, the author demonstrates the approaches taken by courts in countries where de facto unions are not recognized by legislation (Uganda, South Africa, Zambia, Ghana, Zimbabwe, Lesotho, Namibia, Eswatini (Swaziland), and Rwanda) to protect the economic rights of the parties when these relationships are terminated.

‘[T]here are no winners here, only losers’+

ABSTRACT The Supreme Court recently handed down its decision in Guest v Guest [2022] UKSC 27. This was an appeal against an award in proprietary estoppel of around £1.3 million. A proprietary estoppel claim requires detrimental reliance on a promise to grant the claimant an interest in land. This generates an ‘equity’, which enables the court to fashion a remedy to cure this unconscionable situation: for example, an order to transfer the promised interest to the claimant, or an order to pay a monetary equivalent of what the claimant expected. The doctrine has been relied upon in media-friendly cases where claimants had worked on their family farms for low or no pay for many years on the expectation of an inheritance and ended up being cut out of that inheritance. Lord Briggs, for the majority, favoured enforcing the promise as a starting point while allowing for variation where ‘real-life problems’ warranted it. He held that the claimant should have what he expected but, in a novel approach, gave the defendants an entitlement to choose between two forms of relief. Lord Leggatt, dissenting, held that the remedial aim was to do only what was necessary to prevent detriment to the claimant. On his view, compensating the claimant’s reliance loss would be sufficient for this, and, in that regard, he did not factor in lost opportunities. This was a narrow scope to adopt, and the majority judgment is more likely to provide redress for the loss of important life opportunities.

Proprietary Estoppel in Guest v Guest: Equity at its Most Flexible?

Proprietary Estoppel in Guest v Guest: Equity at its Most Flexible?

The Remedial Constructive Trust Approach in the Hong Kong Law of Proprietary Estoppel

The Remedial Constructive Trust Approach in the Hong Kong Law of Proprietary Estoppel

Reading Guest and the Law of Proprietary Estoppel

Reading Guest and the Law of Proprietary Estoppel

Addressing the ‘Lively Controversy’ around proprietary estoppel: Guest v Guest [2022] UKSC 27

Abstract The long-awaited Supreme Court ruling in Guest v Guest has provided a welcomed judgment on a core principle in equity and trusts law, proprietary estoppel. The leading judgment not only provides guidance on the purpose of relief for proprietary estoppel, but also provides much needed clarity on a persistently debated issue in case law, namely whether an ‘expectation-based’ or ‘reliance-based’ approach to calculating relief for proprietary estoppel should be adopted, with the judgment providing an insightful step-by-step guide for the exercise of judicial discretion in such cases to ensure appropriate and justified relief is awarded.

When death is literally the deadline: the “cut-off” point for assessing detriment in proprietary estoppel

Abstract Throughout the brief history of proprietary estoppel, it has been rare to find a case where it was argued that the promisor passed away before the promisee suffers sufficient detriment. Rarer still, to find this promise made jointly by co-owners as tenants-in-common of a property. In Cheung Lai Mui v Cheung Wai Shing [2021], the Hong Kong Court of Final Appeal found the “cut-off” point for assessing detriment in such a case to be the death of the last surviving co-owner—but why should it be? This article explores the theoretical interactions between proprietary estoppel, unconscionability and co-ownership in seeking to answer this question.

Proprietary Estoppel: an italian case law perspective

In the English system, the doctrine of proprietary estoppel prevents a legal owner from acting in an unconscionable manner to the detriment of a reliable claimant. A proprietary estoppel could give rise to a proprietary right of the claimant. Italian law does not recognise a similar doctrine nor does Italian property law seem compatible with it. Nevertheless, in some recent cases, the courts protected the claimant’s reasonable reliance, preventing the legal owner from acting in contradiction with his/her own previous conduct (according to the maxim venire contra factum proprium nemo potest). This paper analyses these judicial decisions, and evaluates when and how the claimant’s reliance is protected.

'Unconscionability' and the Case Against Lumping: Three Case Studies

This paper argues that unconscionability provides no good basis for arguments in favour of lumping equitable doctrines in English law. It explores three areas of equity where unconscionability has most strongly divided lumpers and splitters: undue influence and unconscionable bargains; proprietary estoppel and constructive trusts; and the ‘rule in Re Rose’ and the decision in Pennington v Waine. In relation to each discussion, the paper explains how lumpers rely on the idea of unconscionability to argue in favour of merging or expanding those established doctrines, and argues against lumping, by explaining how this distorts a proper understanding of the law.

Informality and Claims to Property

Discusses the complexity of property claims based on informal legal structures which arise when relationships break down, and how the courts have responded. Reviews a claim for proprietary estoppel in Guest v Guest (CA) to grant the claimant a share of a family farm and business, how the Supreme Court may approach the impending appeal, and Oberman v Collins (Ch D) on whether a common intention constructive trust existed over a property portfolio.

‘Unconscionability’ and the case against lumping: three case studies

Abstract This article argues that unconscionability provides no good basis for arguments in favour of lumping equitable doctrines in English law. It explores three areas of equity where unconscionability has most strongly divided lumpers and splitters: undue influence and unconscionable bargains; proprietary estoppel and constructive trusts; and the ‘rule in Re Rose’ and the decision in Pennington v Waine. In relation to each discussion, the paper explains how lumpers rely on the idea of unconscionability to argue in favour of merging or expanding those established doctrines, and argues against lumping, by explaining how this distorts a proper understanding of the law.

Defying easy explanations—the case of Pennington v Waine 18 years on

Abstract The case of Pennington v Waine has been subject to extensive scholarly attention. Many have sought to fit the case into established categories, such as proprietary estoppel or the rule in Re Rose. This article will argue that the case cannot be explained with these easy explanations. Instead it marks a radical shift in the law and is indicative of an equity that is “on the move”.

Proprietary Estoppel in Australia: Two Options for Exercising Remedial Discretion

According to Giumelli v Giumelli (1999) 196 CLR 101, where A successfully makes out a proprietary estoppel claim, courts must positively exercise two sets of remedial discretion. The first concerns whether expectation relief is a disproportionate remedy in view of the detriment A suffers. If expectation relief is held to be justified, a second set of discretion obliges judges ‘to consider all the circumstances of the case’, including ‘the impact upon relevant third parties’, to decide whether to enforce A’s expectations in specie or to provide a monetary award. This article discusses the problems with Giumelli, both as to the principle it propounds and as to its application on the facts. It then introduces a fundamental analytical proposition, concerning the relationship between different types of private law remedies and discretion, and explores the two options available for the future development of proprietary estoppel in Australia.

Proprietary Estoppel in Australia: Two Options for Exercising Remedial Discretion

Giumelli v Giumelli (1999) 196 CLR 101 indicates that, where A successfully makes out a proprietary estoppel claim, courts must positively exercise two distinct sets of remedial discretion. The first concerns whether expectation relief is appropriate or whether it is a disproportionate remedy in view of the detriment A suffers. If expectation relief is held to be justified, a second set of discretion obliges judges ‘to consider all the circumstances of the case’, including ‘the impact upon relevant third parties’, to decide whether to enforce A’s expectations in specie or to provide a monetary award (whether or not coupled with a charge or lien). Upon closer inspection, the decision in Giumelli and the principle it propounds are deeply ambiguous. This article notes the problems with that judgment, both as to principle and as to its application on the facts. It then introduces a fundamental analytical proposition, concerning the relationship between different types of private law remedies and discretion. In the light of this discussion, the article explores the two options available for the future development of proprietary estoppel in Australia. Ultimately, the present state of the law in relation to the exercise of remedial discretion is unsustainable, and a choice of approach urgently needs to be made.

The ‘Prima Facie Expectation Relief’ Approach in the Australian Law of Proprietary Estoppel

Abstract In Australia, proprietary estoppel attracts the prima facie remedy of expectation relief. This article argues that this remedial approach can be understood simply as a presumption of fact, providing a practical starting point that reflects the frequency with which cases justifying expectation relief are brought. This understanding of the remedial approach is consistent with the aim of the doctrine, which is (and remains) the avoidance of detriment. The article suggests that the remedial approach does provide, and ought to be understood as providing, only a weak default position. This position encourages judges to be alive to the facts of particular cases in framing the appropriate relief.