Land - Proprietary Estoppel

Front 1

Estoppel

Back 1

Informal mode of creating rights in land

Front 2

Sword and shield

Back 2

Lord Denning MR, Crabb v Arun DC

Front 3

Stages

Back 3

1. Inchoate equity or estoppel equity

2 Goes to court - satisfied or fed

Front 4

Policy

Back 4

Undermines formality rules

Undermines testamentary freedom

Lord Walker, Cobbe v Yeoman's Rowe, should not be a 'joker or wild card'

Front 5

Requirements for an estoppel claim

Back 5

Lord Walker, Thorner v Major

1. Representation or assurance

2 Reliance

3 Detriment

Front 6

Unconscionability?

Back 6

Robert Walker LJ in Gillett v Holt had emphasised unconscionable conduct

Birks: fifth wheel

Lord Walker, Cobbe v Yeoman's Row: not necessary, served to unify, evidentiary function

If all the elements are there and unconscionability is not made out, the court must look at the analysis again

Front 7

Assurance

Back 7

Passive: claimant allowed to act to his detriment

Active: express or inferred assurances

Thorner v Major: objectively must be clear enough to rely upon, not a joke

Front 8

Thorner v Major

Back 8

Two farmers

One gave life insurance policies to the other, drafted a will

Cancelled it, planning on leaving even more

Died before he could make a new will

Walker: taciturn men

Front 9

Need for more certainty in the commercial context

Back 9

Cobbe v Yeoman's Row

Front 10

Cobbe v Yeoman's Row

Back 10

1 Family bought flats, intending to develop

2 Promised to sell the land to a developer, on the condition he would get planning permission

3 He did, but refused to sell to him

4 CoA: estoppel

5: Lords: no estoppel

Front 11

Walker

Back 11

1 CoA placed too much emphasis on Walker

2 The only expectation was of a contract, not a property interest

3 Both parties knew there was no contract

4 No unconscionability

5 Unconscionability unified the other elements

6 Conduct was unattractive, not unconscionable

7 Maybe restitution

Front 12

Scott

Back 12

1 Proprietary estoppel a sub-species of promisory estoppel

2 Cannot contradict formality of statute

3 Writing requirement in 2(1) of LPMPA 1989 for sale of land, no writing here

Front 13

Reaction

Back 13

Lord Neuberger, extra-judicially

Equity is not a US 5th cavalry or Denning-esque sword of justice

Either unconscionability not made out on the facts

Or it is not enough

Goymour described Cobbe as a knowing risk-taker

Whereas not realistic to ask for writing in Thorner v Major

Front 14

Reaction II

Back 14

• McFarlane and Robertson described the decision in Cobbe v Yeoman’s Row as the death of proprietary estoppel.o

Because a claimant is precluded from a proprietary estoppel claim unless they believe that have a legally enforceable claim.

Lord Neuberger agrees.

And wonders what is wrong with that in the commercial context. In the business world, clarity and certainty are far more important.

Front 15

Trusts

Back 15

o Lord Millett had also written about his distaste at trust law interfering in the business world.•

Contract looks forward at what must be done.

o Equity looks back at what was done.

Front 16

Reliance case

Back 16

Greasley v Cooke

Maid in property

Argued she would have stayed anyway, so no reliance

Court of Appeal presumed reliance and she had an estoppel

Front 17

Detriment

Back 17

Gillett v Holt

Robert Walker LJ: broad definition of detriment

In that case, committing to a life of low wage, spending time and money was a detriment

Front 18

Example of detriment

Back 18

Jennings v Rice

Gardener slept in house, unpaid security guard, ran errands, eventually become sort sort of unpaid carer

This was felt to be enough to generate an estoppel

Front 19

Company detriment

Back 19

Lloyd v Dugdale

Company and him both suffered detriment

He could have bought alternative premises

Front 20

Countervailing benefits taken into account

Back 20

Henry v Henry

Living in farm on St Lucia was not ouweighed by missed opportunity to seek a better life elsewhere

And punishing work on the farm

Front 21

McFarlane on unconscionability

Back 21

At the moment, it is a separate element

It unifies and confirms the rest of the doctrine

As time goes on, it will be subsumed

Like stabilisers on a bike

Front 22

Satisfying the remedy

Back 22

Court must award 'minimum equity to do justice to the plaintiff', Scarman LJ Crabb v Arun DC

Anything from freehold to nothing at all

Front 23

If clear

Back 23

• Jennings v Rice is authority for the principle that, where the mutual understanding in reasonably clear terms, the award should meet the claimant’s expectation

In bargain cases, the starting point is to give what has been promised

Otherwise, proportionate amount

Front 24

Gardner

Back 24

Feels there is too much uncertainty in the award offered

There is more rule by men than by law

Front 25

Estoppel and trusts

Back 25

s2(5) of the LPMPA 1989 exempts trusts from writing requirement

But dones not mention estoppel

Front 26

Same facts giving rise to both

Back 26

Yaxley v Gotts

Walker LJ: public policy prevents estoppel getting round formalities

Enforcing a void contract

Contradicting Parliament

Same facts raise both

Remedy to an estoppel can be the creation of a trust

In that case, estoppel failed but a trust was granted

Front 27

Four views

Back 27

Estoppel cannot circumvent s2

Estoppel can circumvent s2 if trust

Estoppel can circumvent s2 if no contract

Estoppel unaffected by s2

Front 28

First view

Back 28

Estoppel cannot circumvent s2

Lord Scott, Cobbe v Yeoman's Row

Equity cannot contradict the words of the statute

Constructive trust cannot be used instead

Front 29

Second view

Back 29

Estoppel can circumvent s2 if trust

Walker LJ, Yaxley v Gott - shoehorn same facts into trust

Front 30

Third view

Back 30

Estoppel can circumvent s2 if not contract

Lord Neuberger, extra-judicially

Front 31

Fourth view

Back 31

Estoppel unaffected by s2

Bean J preferred this in the most recent case, Whittaker v Kinnear

This probably reflects the law.

Bean J argued that ‘proprietary estoppel in a case involving a sale of land has survived the enactment of Section 2 of the 1989 Act.’

Front 32

Similarities

Back 32

Two similar means of informal rights

Claimants often plead both

• Sir Nicholas Browne-Wilkinson remarked as such in Grant v Edwards.o

‘The two principles have been developed separately without cross-fertilisation between them: but they rest on the same foundation and have on all other matters reached the same conclusions.’

Front 33

Differences

Back 33

• In Stack v Dowden, Lord Walker said obiter that the two doctrines were different.o

He did not like merging them, nor did Lord Neuberger.

Front 34

Differences

Back 34

1. Constructive trusts normally arise in a shared gone, estoppel broader

2 Reliance presumed in estoppel, needed for consructive trust

3. Representation needed for estoppel, common intention for constructive trust

4. Inchoate equity needs to go court, even then may not be property right

5 One cannot overreach an equity

Front 35

Example

Back 35

Southwell v Blackburn

Woman made clear she did not want ownership interest

She moved into man's home

But was an estoppel, and got damages

Front 36

Theory

Back 36

Sir Terence Etherton

Large overlaps, no coherent logic

Courts have expanded constructive trust in Stack v Dowden

But restricted proprietary estoppel in Cobbe v Yeoman's Row

Shot the wrong beast by restricting trust and expanding estoppel

Estoppel more reliable and secure

Unconscionability has never been enough

Front 37

Extent of estoppel

Back 37

Scott, Cobbe - sub-species of promissory estoppel, restrictive definition

Walker, Cobbe, broader definition, could be assimialted with constructive trusts, expectation of a gain

Walker, Stack v Dowden, retreated from assimilation - question of minimum award to do justice, not identifying true beneficial owner

Front 38

Proprietary

Back 38

Inchoate equity is only proprietary if likely to be awarded a proprietary right