#16145 - Estoppel - Land Law

1. INTRODUCTION

Proprietary estoppel can establish property rights without satisfying formality requirements, on the basis that someone who has made a representation or allowed another to labour under a misapprehension should not be allowed to deny what has been represented, after the other has acted upon it to his detriment.

2. NATURE AND USE OF ESTOPPEL

Originally estoppel was confined to representations of facts and didn’t extend to promises, and in promissory estoppel it was restricted to use as a shield. However, courts have routinely given effect to promises, and allowed it to be used as a sword (eg. to give C a lease, easement or fee simple, or a monetary remedy in some modern cases). It is especially important in two contexts: 1) overcoming lack of formalities in land transactions, 2) giving effect to expectations of a non-proprietary nature.

3. WHEN WILL AN ESTOPPEL ARISE?

Thorner v Major requires there to be a representation or assurance by landowner to C, and detrimental reliance. The requirements must be proved, rather than relying directly on unconscionability, though this is the ground on which it is based.

i. Representation or assurance to C by landowner O that C has an interest

• Nature of the representation or assurance

  • Mistake: C needs to believe that he has an interest, or that O is committed to creating one (easier to prove if the detriment is very substantial, as one can still suffer detriment in the hope that it would turn out well, for example in the expectation that a longstanding practice will continue)

    • Crabb v Arun DC: C was negotiating with O for an easement and after a draft agreement was reached O erected substantial gates to allow C to access and C was permitted to start to use the access. In reliance, C disposed part of the land that provided an alternate access and allowed himself to become landlocked. Held that although C wasn’t under a mistaken belief that he had an easement, there was still estoppel because it was reasonable for him to believe that he would be given an easement after erecting the gates

    • Griffiths v Williams: O (C’s mother) assured C that their home would be C’s for life – CoA rejected the argument that C wasn’t mistaken as to her right. It was enough that it would be unconscionable for O to go back on the representation – in family settings, a distinction between C having a right and C will be given a right is difficult

  • Incomplete negotiations cases: Estoppel will not give legal effect to negotiations or explicitly non-binding agreements, but one can point to circumstances outside negotiations to justify an expectation (eg. Crabb v Arun DC pointing to the gates, or Salvation Army v West Yorkshire)

    • AG of Hong Kong v Humphreys Estate: pending negotiation C was allowed occupation under a license that make it clear that it might be revoked. C incurred significant detriment, but PC rejected his claim – therefore reliance on incomplete negotiation is unlikely to give rise to estoppel

    • Salvation Army v West Yorkshire MCC: O acquiesced in a letter from C warning that detriment was going to be incurred – claim succeeded when C incurred the detriment

  • Cases of promise to leave property by will: Difficult because O’s intention could have changed, and testators have an inherent freedom to decide whom to give property to.

    • Gillett v Holt: CoA upheld a claim in estoppel, but in that case there were repeated assurances, in front of witnesses, over a substantial period of time.

    • A common case is where C is caring for O in O’s old age and O responds by promising to leave property to C: Cambell v Griffin, Jennings v Rice, Powell v Benny

  • Recent HL cases:

    • Cobbe: C spent lots of money obtaining planning permission for O’s land which he was negotiating with O to buy. Held that C was well aware that there was no contract and he’d proceeded in the hope of a contract. This is inadequate for estoppel, as it would be to allow C to claim a contractual right when he is well aware that there has been none.

      • Lower Courts found for C because of very substantial expenditure, and the subsequent increase in value of O’s property meant gains for O

      • HL still allowed C to recover expenditure through unjust enrichment, and the decision is just but analysis posed problems:

        • Lord Scott suggest that proprietary estoppel is a form of promissory estoppel which requires a representation of fact – this poses problems for huge number of cases that enforced promises

        • Lord Walker distinguishes a commercial and family setting – in commercial settings parties are aware of the significance of a contract and the relevant law. But he suggests that C must believe the assurance is ‘binding and irrevocable’ which is far from clear in caselaw

    • Thorner: similar facts to Gillett but weaker because there was no overt representation – O was taciturn and his intentions often had to be inferred from conduct. HL found assurance, Lord Walker holding that the assurance must be ‘clear enough’ while Lord Neuberger said it must be ‘clear and unequivocal’, but both held to satisfy the test. Observed that Cobbe is not as highly restrictive as feared, but gave no analysis as to the reasoning there.

      • Therefore promises CAN be the basis for estoppel – in Thorner there is a ‘reasonable reliance’ test that it is reasonably foreseeable that C might act on it. O needn’t intend reliance – test is objective.

      • Lord Neuberger said that under this test the commercial/family divide will come into play because in the former it’s less likely to be ‘reasonable’

  • Uncertain expectation is tolerated: Many cases said that it is unnecessary for the parties to specify the interest (especially in family settings where parties don’t usually think in categories of interest in land) – probably explained by the fact that the court has discretion as to remedy.

    • BUT uncertainty as to the property to which the interest relates is more difficult: Thorner discussed this – the property was a farm that could grow or diminish in size. Court said it wasn’t a problem as long as the court could identify the farm at the date the assurance was enforced. However Lord Walker suggests that some element of certainty is still required (eg. ‘financial security’ would not be enough)

• Encouragement or acquiescence by owner

  • O must have some responsibility for C’s reliance – this requires knowledge (actual or constructive – objective test: Thorner) of the claim and detriment. This is difficult where:

    • Both are genuinely mistaken (C thinks there’s a right and O thinks C’s merely hoping for one) – objective test is important

    • O merely acquiesces in C’s expectation – then actual knowledge is important

ii. Reliance

• Reliance must be reasonable (more important for promises – less likely that reliance on a representation will be unreasonable)

• Difficulty: motivations are usually mixed, but was resolved in Greasly v Cooke where CoA held that the burden was on O to prove that C didn’t rely on the assumption/expectation. In that case C was assured by O (family) that she could stay in the house for life, and she looked after the house etc. O argued that C’s conduct was explicable by her living with family but CoA said that O had to prove this

  • Therefore it’s enough that expectation/assumption is one of the reasons for detriment

• Reliance doesn’t have to be on O’s conduct – it can be on C’s own mistaken belief that the land belongs to him and can be unaware of O.

iii. Detriment

• Because of presumption of reliance, detriment will likely be most contentious in future cases

• Many kinds:

  • Building a garage on one’s land on the basis of a right of access

  • Selling part of one’s land leaving one landlocked

  • Leaving one’s existing home where there is a right to remain and an existing job

  • Looking after O or members of O’s family

• Detriment will NOT be found where C’s actions can be viewed as contributing to the cost of running the home or as a substitute for rent.

• Family relationships: Difficult because people living together go out of their way to assist one another – how far can this count as detriment?

  • Coombes v Smith: parties became lovers and when C became pregnant, she moved into O’s house, claiming detriment in leaving her husband, becoming pregnant and raising a daughter, failing to look for a job and doing work on the house. All REJECTED – she left her husband as a result of an unhappy marriage, became pregnant because she wanted a child (at any rate the judge wasn’t sure if pregnancy could be detriment), failure to look for a job is difficult to rely upon, and work on the house was because she was living there and at any rate wasn’t detriment because it enhanced her occupation

  • Grant v Edwards: more generous approach adopted, where ‘setting up house together, having a baby, making payments to general housekeeping expenses’ sufficed – referring to Gillett v Holt and its acceptance that giving up other opportunities can count towards detriment. Don’t know where this leaves coombes

• Modern focus on unconscionability may lead the court to conclude that detriment doesn’t justify a remedy if C also obtained significant benefits.

4. THE EFFECT OF ESTOPPEL

i. Use as a sword

Though promissory estoppel cannot be used as a sword, it can in the property context, allowing C to force a transfer of a fee simple (Dillwyn v Llewelyn), or to receive a lease or license (Crabbe v Arun DC). Where the claim is based on a mistake, the courts have openly recognized such claims, but it becomes more difficult where the expectation is a promise – because then it appears to be encroaching...