Proprietary Estoppel Research Articles

Confining and defining proprietary estoppel: the role of unconscionability

The use of proprietary estoppel to make or support claims to property is now common. Case-law tells us that the concept of unconscionability is central to a successful claim, but little guidance is provided as to what ‘unconscionability’ means or how it is to be established. It is often assumed rather than explained. This paper argues that unconscionability in fact has a reasonably clear meaning within the law of proprietary estoppel and that it can be used to define and confine proprietary estoppel within reasonably clear boundaries. It seeks to explain that proprietary estoppel is at heart an antidote to a lack of required formality in the creation or transfer of property rights and, consequently, that the proper meaning of unconscionability is linked to these formality requirements. Unconscionability is therefore not a cover for unregulated judicial discretion, nor a loose term to describe a general sense of unfairness, but a concept which can be used to discriminate objectively between valid and invalid estoppel claims.

Confining and Defining Proprietary Estoppel: The Role of Unconscionability

The paper analyses the role of unconscionability in the definition of estoppel and argues that it is essential to understand its role and its meaning.

Hopes, Expectations and Revocable Promises in Proprietary Estoppel

This note dicusses the House of Lords' decisions in Cobbe v Yeoman's Row Management Ltd (Cobbe) and Thorner v Major (Thorner) regarding the nature and scope of proprietary estoppel. It considers the historical development of the modern law of proprietary estoppel, the circumstances in which equity will render a promise irrevocable, and the role of context in the ascription of responsibility.

Proprietary Estoppel and Formalities in Land Law and the Land Registration Act 2002: A Theory of Unconscionability

An analysis of the concept of unconscionability in the law of proproetary estoppel and with reference to the Land Registration Act 2002

Conscience, discretion and the creation of property rights

This paper considers the utility of the concept of conscience or unconscionable conduct as a contemporary rationale for intervention in two principles applied where a person seeks to renege on an informal agreement relating to land: the principle in Rochefoucauld v Boustead; and transfers ‘subject to’ rights in favour of a claimant. By analysing the concept in light of our current understanding of the nature of judicial discretion and the use of general principles, it responds to arguments that unconscionability is too general a concept on which to base intervention. In doing so, it considers the nature of the discretion that is actually in issue when the court intervenes through conscience in these principles. However, the paper questions the use of constructive trusts as a response to unconscionability. It argues that there is a need, in limited circumstances, to separate the finding of unconscionability from the imposition of a constructive trust. In these limited circumstances, once unconscionability is found, the courts should have a discretion as to the remedy, modelled on that developed in the context of proprietary estoppel. The message underlying this paper is that many of the concerns expressed about unconscionability that have led to suggestions of alternative rationales for intervention can in fact be addressed whilst retaining an unconscionability analysis. Unconscionability remains a preferable rationale for intervention as it provides a common thread that links apparently separate principles and can assist our understanding of their scope.

PROPRIETARY ESTOPPEL AND PROPERTY RIGHTS

THIS article focuses on a particular aspect of the operation of proprietary estoppel: it asks when a proprietary estoppel claim will give rise to a property right. The inquiry proceeds on the linked assumptions that proprietary estoppel is a means of acquiring rights and that rights thereby arising take effect immediately, without the need for any court order. Like any other means of acquiring rights, proprietary estoppel can give rise either to personal rights or to property rights: in some cases the estoppel claimant is acknowledged to have a personal right (e.g. to damages or a licence to use land); in others a property right (e.g. a lien; an easement; a lease; or a freehold). The central argument of this article is that proprietary estoppel should give rise to a property right only if that is necessary to protect the claimant’s reasonable reliance. Where a personal right gives sufficient protection that will have to do, whatever the claimant may have been promised or expected; this may well mean that the circumstances in which a property right arises are more narrow than has been thought.

PROPRIETARY ESTOPPEL AND THIRD PARTIES AFTER THE LAND REGISTRATION ACT 2002

Much has changed since 1925, even in land law. The emergence of principles of proprietary estoppel has been one of the most striking developments. For some litigants, these principles have been a source of new opportunities; for many judges and academics, they have been a source of new problems. It is therefore no surprise that, by means of what is now section 116 of the Land Registration Act 2002, the Law Commission attempted to deal with one of these problems, albeit only in disputes relating to registered land.

Overriding of conveyance by proprietary estoppel and a resulting trust

Overriding of conveyance by proprietary estoppel and a resulting trust

Constructive trusts and estoppel

Repeated comments are made as to the similarity between the common intention constructive trust and proprietary estoppel, but there remains considerable confusion over the precise nature of this interrelationship. The constituent elements of each doctrine bear close comparison and, although their respective modes of operation remain distinct, they may lead to similar results. The recent redefinition of the Pallant v Morgan equity provides an opportunity to probe once more the interrelationship between these doctrines. The Pallant v Morgan1 equity explores the operation of the Rochefoucauld v Boustead2 doctrine in the context of the joint acquisition of land and demonstrates the enforceability of express oral intention based upon a wider range of unconscionablity than the detriment based conduct which dominates both the common intention constructive trust and estoppel.

The Termination of Bare Licences

IN principle, the law relating to the termination of bare (or gratuitous) licences should be relatively simple. Bare licences do not enjoy statutory protection and a bare licence cannot impose contractual obligations on the licensor. There are, however, four elements which complicate the law. First, through the operation of the doctrine of proprietary estoppel, the licensor may be estopped from revoking a bare licence. Second, a licence which has been acted upon is not revocable. Third, on revocation of a bare licence, the licensee must be given a reasonable “period of grace” or “packing-up period”. Fourth, it is sometimes said that a bare licence may be revoked only “on reasonable notice.” These four elements overlap (in part) and, in the case law and academic literature, there is some degree of confusion. The difficulties which exist can be resolved by more rigorous analysis.

ESTOPPEL, UNCONSCIONABILITY AND FORMALITIES IN LAND LAW

KEN Holt was a wealthy farmer in Lincolnshire. In 1952 he befriended Geoffrey Gillett and then persuaded the young man to work on the farm instead of continuing at school. For nearly 40 years, Gillett was Holt’s right arm, a relationship that did not falter when Gillett married. Over these years, when Gillett managed the farm and eventually entered into partnership with Holt, Holt repeatedly promised that Gillett would be the principal beneficiary of his will. These were no idle boasts, but were repeated often, in public, and were given effect in several versions of Holt’s will. In 1992, Holt formed a friendship with Mr Wood (a trainee solicitor), the result of which was the eventual breakdown of his relations with the Gillett family and their exclusion from his will. In Gillett v. Holt [2000] 3 W.L.R 815 Geoffrey Gillett asserted that Holt was estopped from changing his will so as to deny Gillett his expected legacy. As we might think, a simple case of proprietary estoppel based on assurance, reliance and detriment. However, Carnwath J. at first instance thought otherwise and rejected estoppel because first, Gillett could not establish that Holt had made an irrevocable promise not to change his will (and everyone knows that wills may be changed), and secondly, Gillett had suffered no detriment.

Proprietary Estoppel, Constructive Trusts and Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989

As is well known, section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 effected a fundamental change in the law respecting formalities for contracts relating to land, rendering the doctrine of part performance obsolete.' Yaxley v Gotts2 presented the Court of Appeal3 with the opportunity to determine how far other equitable remedies, in particular proprietary estoppel, survive the new provisions. Regrettably, the court did not deal with the question as clearly as might have been hoped. Although the judges unanimously recognised the claimant's informally created property rights, the judgments did not fully explore the relationship between section 2, constructive trusts and proprietary estoppel. The extent to which equitable remedies can protect a claimant falling foul of section 2 accordingly remains obscured by opaque judicial reasoning.

A matter of trust: the allocation of rights in the family home

The current law of resulting and constructive trusts and proprietary estoppel is acknowledged to provide uncertain and often unsatisfactory remedies to disputes concerning the allocation of property rights in the family home. This article reviews these inadequacies, particularly as they affect the growing numbers of cohabitants, and puts forward radical proposals for reform. It is argued that the special nature of the family home - where the parties' relationship is based on ‘trust and collaboration’ rather than commercial principles - requires reform which takes account of the broader contributions of both parties to the home and to the family in allocating property rights. The law should strive to treat all family homes in a consistent way, provide greater certainty of outcome, and yet do justice between the parties. A system of modified community property is therefore proposed. Broadly, this will provide a sliding scale of allocation of property rights over time for non-owner partners and a presumption of enhancement of the interest of the primary carer of children of the relationship. However, contracting out should be permitted; and a discretion to adjust the presumptive rights retained by the court where ‘manifest injustice’ is demonstrated.

Proprietary Estoppel and Wills

When is a promise to benefit someone on one's death an enforceable promise? This was the question for the High Court in Gillett v. Holt and Another [1998] 3 All E.R. 917. As Carnwath J. recognised, the difficulty lies in reconciling proprietary estoppel with the principle that “[s]ubject to specific exceptions (such as for dependants), the right to decide, and change one's mind as to, the devolution of one's estate is a basic and well understood feature of English law”.

Constructive trusts over the family home: lessons to be learned from other commonwealth jurisdictions?

Ownership of the family home is usually not disputed until either the relationship between the spouses or cohabitants breakdown or there is a competing claim over the property by a third party. In such circumstances, determination of ownership rights becomes imperative. The Matrimonial Causes Act 1973 gives the courts adjustive powers to deal with disputes between spouses on the breakdown of the marriage. Notwithstanding this, there may be circumstances where it will be necessary or desirable to determine property rights between spouses. Furthermore, the adjustive powers of the courts are not applicable to cohabitants. Thus, in the absence of legal co-ownership in the family home, cohabitants and spouses who cannot rely on the 1973 Act will have to establish an equitable interest in the property. The analyses relied on are primarily based on property law and trusts principles and, more particularly, imputed trusts and proprietary estoppel. Under trusts principles, imputed trusts are usually taken to refer to resulting and constructive trusts.

Proprietary Estoppel and the Element of Unconscionable Conduct

Proprietary Estoppel and the Element of Unconscionable Conduct

The things we do for love: detrimental reliance in the family home

The rules governing the acquisition of beneficial interests in family homes have generated a great deal of academic literature since their restatement, and apparent clarification, by the House of Lords in Lloyds Bank plc v Rosset. In what has become an all too familiar passage, Lord Bridge outlined the two methods by which such an interest can be acquired in the absence of writing. For a claimant to succeed under the first of these (the only one with which this article will be concerned), the court must be satisfied that there has been: (a) an ‘agreement, arrangement or understanding’ between the claimant and the legal owner to share the beneficial interest, evidenced by oral discussions between them; and (b) that the claimant has acted to her detriment, or significantly altered her position, in reliance on the agreement. If these requirements are satisfied the claimant will obtain an interest, according to Lord Bridge, by way of constructive trust or proprietary estoppel.

Informal Transactions in Land, Estoppel and Registration

The principal purpose of this article is to consider how well, or badly, the English system of land law and conveyancing handles the exceptional, but nonetheless important, cases of informal transactions in land. The article is in six parts. Part 1 points to the high degree of formality normally required for transactions in land and discusses the exceptional cases where informal transactions are permitted. Some criticisms and suggestions for reform are made. One of the exceptional cases where interests in land can arise informally is under the doctrine of proprietary estoppel, and part 2 considers whether interests so arising can be fitted satisfactorily into a conveyancing system which increasingly, because of the spread of the title registration system, requires interests in land to be registered in order to bind subsequent purchasers. The conclusion reached is that both the registered and the unregistered land systems cope satisfactorily with such interests. In part 3, attention is turned to a well-known but difficult case, ER Ives Investment Ltd v High,l which is treated in many of the books as a case on proprietary estoppel. The Court of Appeal had great difficulty in deciding the case on its merits without doing violence to the registration requirement. It is argued that none of the judgments gives a satisfactory explanation, but that using a different form of estoppel, a better explanation is possible which is consistent with both the registered and unregistered land systems. In part 4 it is argued that Ives v High is but one example of a wider category of cases where the courts show themselves to be unhappy with the proposition that an unregistered interest can be defeated by a purchaser who has actual knowledge of that interest. This point is illustrated in part S by a brief examination of the Green family saga,2 and it is argued that the principal decision in favour of Mrs Green causes concern. Part 6 concludes the article with an argument for abolishing the protection given to a purchaser with actual knowledge, and some other proposals for reform.

Matrix Churchill and Public Interest Immunity: A Postscript

Matharu v Matharu was always going to be a difficult case. On the one hand, there was what Dillon LJ described as the plaintiff's 'repugnant' behaviour in trying to render homeless his widowed daughter-in-law and five grandchildren. On the other hand, there was a defendant who was now seeking to remain in the property indefinitely when it was at least questionable how far she had originally believed she would have this right and had acted to her detriment in reliance on it. There was no suggestion that the plaintiff had ever told the defendant that the property belonged to Raghbir and, although Roch LJ cites references by Raghbir to 'his house,' Dillon LJ simply refers to the defendant having 'supposed or assumed that the house belonged to Raghbir.'31 Even if the defendant had understood the property to be Raghbir's, did she really imagine that she would be able to remain there indefinitely? As for payments in respect of the mortgage and improvements being detrimental reliance, it should be noted that Raghbir was prepared to make them although he knew full well that the property belonged to the plaintiff. Of general significance is the way the majority of the Court of Appeal, once they were persuaded (rightly or wrongly) that there had been the requisite belief and detrimental reliance, not only applied the narrow approach but failed even to acknowledge the existence of the broad approach. As a result, a series of cases must now be expected where the courts attempt, in Oliver J's words, to force facts into 'a Procrustean bed constructed from some unalterable criteria'32 so that a party can successfully raise a proprietary estoppel. Although there will be cases where, as in Matharu v Matharu, the outcome is going to be the same regardless of which approach is taken, this will not always be so. Reverting to the narrow approach in all cases will surely limit the opportunity both for justice being done in the individual case and for the continuing development of an extremely important type of estoppel.

From Representation to Expectation: Estoppel as a Cause of Action

In recent years, one of the most vibrant doctrines has been that of equitable estoppel. This doctrine is generally seen as having two main branches: the defensive doctrine of promissory estoppell and the older and more aggressive doctrine of proprietary estoppel, which can itself be used to obtain rights: to be the cause of action itself. The aim of this article is to analyse the central concepts of equitable estoppel in order to distinguish it from its common law counterpart, to consider its relationship to the law of contract and also to present the two main branches as being closely related concepts, based on common underlying themes.