Proprietary Estoppel

Front 1

Acts as shield

Back 1

X cannot plead lack of formality in creation of C's rights
X cannot go back on their word where it would be inequitable

Front 2

Acts as sword

Back 2

Where C detrimentally relies on assurance by X that they will receive some right over land,

court will satisfy estoppel by awarding C equitable interest they deem appropriate (if any)

Front 3

Estoppel involves

Back 3

Creation of right without normally required formalities for writing under S.53 LPA

Front 4

Problem with estoppel

Back 4

Uncertain and flexible in both application and remedies, since it is equitable doctrine

Front 5

Conditions of PE authority

Back 5

Taylor Fashions

Front 6

Conditions of PE

Back 6

Assurance
Reliance
Detriment
Unconscionability

Front 7

Gillett v Holt advocating holistic approach

Back 7

Elements should be looked at 'in the round' as part of a broad inquiry into all the circumstances

Front 8

Assurance need not be specific or even expressed

Back 8

Thorner v Major

Front 9

Assurance need not be strong

Back 9

Jennings and Gillett

Front 10

But assurance must be clear ENOUGH

Back 10

Yaxley v Gotts (which was NOT sufficiently clear)

Front 11

Estoppel should not be used to circumvent formalities under S.2 LP(MP)A

Back 11

Cobbe v Yeoman's Row

Front 12

Assurance in Pascoe v Turner

Back 12

Husband assured wife house and everything in it was hers

Front 13

Assurance in Jennings

Back 13

Woman told claimant he would be alright since 'this will all be yours one day'

Front 14

Assurance in Dillwyn

Back 14

Father led son to believe he had property right

Front 15

Assurance in Gillett v Holt

Back 15

Seven different representations over years, including 'all this will be yours'

Front 16

Commercial claimant...

Back 16

Should be aware of 'assurances' that are merely initial negotiations (Cobbe)

Front 17

Assurance in Cobbe failed because...

Back 17

Cobbe's expectation was always speculative and contingent on successful completion of contract

As persons exerienced in property world, parties knew agreement was not intended to be legally enforceable

Front 18

Less awareness required in domestic context

Back 18

Thorner v Major

Front 19

Piska comments on Thorner...

Back 19

Familial context assumed to be premised on notions of trust and loyalty

Because of this, it was reasonable for Thorner to rely on statements made to him since it was with someone he had built close relationship with

Front 20

Also relevant in Thorner that assurer was...

Back 20

Quiet-natured, so statements were uncharacteristic and arguably more likely to be intended as assurances

Front 21

Reliance means...

Back 21

C induced to behave differently because of assurance

Front 22

Reliance can be implied where...

Authority

Back 22

Clear assurances have been made and detriment suffered
Greasley v Cooke

Front 23

Assurance need not be sole reason C acted as they did...
Authority

Back 23

Could also be out of love

Wayling v Jones

Front 24

Detriment... (2 points)

Back 24

Must be more than minimal or trivial
Need not be financial (Gillett and Greasley, which both involved loss of opportunities)

Front 25

Unconscionability...

Back 25

Necessary but not sufficient on its own

Front 26

Extent of detriment taken into account in looking for unconscionability

Back 26

E.g. Gillett involved decades of work and effort expended for very little return

Front 27

Remedies... (3 points)

Back 27

Vary broadly
Very dependent on facts
Extremely discretionary

Front 28

Relief is...

Back 28

Designed to avoid unconscionable result (Jennings)

Front 29

Court awards... (2 points)

Back 29

Minimum equity to do justice to claimant (Crabb v Arun DC)
No more than what was informally promised

Front 30

May receive expectation interest... (2 cases)

Back 30

Pascoe v Turner, where entire fee simple given
Dillwyn v Llewellyn, where son was awarded everything he had been assured

Front 31

Crucially important factor on facts in Pascoe

Back 31

Poor wife had spent most of savings in reliance on assurance

Front 32

Not necessarily expectation interest, since award...

Back 32

Must be proportionate (Jennings)

Front 33

Jennings' award was decided by considering... (3 points)

Back 33

Awarding house itself was inappropriate, since property was unsuitable for J to reside in alone

Awarding cost of house would be excessive and almost double the value of services J provided

On any account expectation was uncertain

Front 34

Award may be restitutionary...

Back 34

I.e. money expended on work - quantum merit payment (Cobbe)

Front 35

Award may be compensatory in lieu of proprietary interest

Back 35

Wayling v Jones (where property concerned had been sold)

Front 36

Need not result in traditional proprietary right

Back 36

Dodsworth v Dodsworth

Front 37

Estoppel is capable of binding 3rd parties (i.e. successors in title)

Back 37

S.116 LRA

Front 38

But if PERSONAL right awarded...

Back 38

It will not bind successors

Front 39

Suggested courts award personal right where...

Back 39

They feel claim does not merit potential carrying-over of interest (as would occur with proprietary right)

Front 40

Similarities of proprietary estoppel and constructive trust... (3 things)

Back 40

Both enforce promise without usual formalities - proprietary interest can be obtained without normally required written instrument

Both triggered by assurance, reliance and detriment

Both involve intervention of equity to provide relief

Front 41

Difference in way interests arise...

Back 41

Proprietary estoppel said to arise from 'unilateral' assurance, whereas constructive trust arises from common intention between parties...
Though cases exist where PE arose from common intention (Gillett)

Front 42

Difference in operation...

Back 42

Estoppel acts on conscience of legal owner to prevent them acting in unconscionable manner

Constructive trust exception under S.2(5) LP(MP)A operates more as a saving clause where contractual formalities have not been met

Front 43

Difference in remedies...

Back 43

Proprietary estoppel may give rise to lesser remedy - involves 'MINIMUM equity to do justice', whereas constructive trust fulfils expectation interest

Front 44

Difference in result...

Back 44

Proprietary estoppel only crystallises in court when it is decided estoppel has arisen

Constructive trust gives effect to interest in the past - arises from moment work was done

Front 45

Similarity - Chadwick in Oxley...

Back 45

Stated outcomes of two concepts is likely to be same whichever is used (but did not equate CONCEPTS)

Front 46

Similarity - Browne-Wilkinson in Grant v Edwards... (2 points)

Back 46

Elements and principles of proprietary estoppel 'closely akin' to that of constructive trust

Doctrines rest on same foundation and have on all other matters reached same conclusions

Front 47

Difference - Pawlowski has commented it is...

Back 47

The element of discretion which continues to fundamentally differentiate two doctrines

Front 48

Confusion - Moore has pointed out...

Back 48

Although Yaxley v Gotts (2000) did not find it important to draw clear distinction between two concepts, it also did NOT consciously seek to equate them

Same positive result occurred with either, resulting in confusion as to which one needs to be applied

Front 49

Constructive trust has been used to overcome contract which was essentially void under S.2 LP(MP)A

Back 49

Yaxley v Gotts

Front 50

Recent case law suggests...

Back 50

Proprietary estoppel is historical and constructive trust should instead be used

Front 51

Since Yaxley it is arguable that death of proprietary estoppel occurred in...

Back 51

Cobbe v Yeoman's Row

Front 52

Or if not, then two have significantly...

Back 52

Blended/merged

Front 53

Blending - Pawlowski has suggested since Cobbe...

Back 53

Weight of authority now firmly against PURELY estoppel-based exception to legal formality in context of an oral agreement which falls foul of S.2 LP(MP)A

I.e. estoppel is attached to the constructive trust and will not be likely to succeed unless trust can also be established

Front 54

Blending - Arden LJ in Kinane v Mackie-Conteh commented that...

Back 54

Primary issue in case was whether the circumstances justify a finding of proprietary estoppel OVERLAPPING with constructive trust

Front 55

Blending - Thrust of Arden judgment in Kinane was that...

Back 55

Policy underlining S.2(1) will not be violated ONLY where the unconscionability underlying the estoppel claim ALSO gives rise to a constructive trust within S.2(5)

I.e. two are undeniably very closely linked and must be found together

Front 56

Blending - Neuberger in Kinane agreed...

Back 56

'Only real question' was whether constructive trust could be established, suggesting it would NOT have been open to claimant to avoid consequences of S.2(1) if he could establish a proprietary estoppel but NOT trust

Front 57

Don't blend - Moore points out...

Back 57

It would be 'highly unsatisfactory' for proprietary estoppel and constructive trust to merge and lose their distinct concepts