#2062 - What Is The Driver Behind Proprietary Estoppel - Land Law

What is the driver behind proprietary estoppel?

Is the driver expectation?

• C definitely needs to expect something – but this only seems to establish a claim in proprietary estoppel

  • You’re going to need something extra to get relief for it

  • McFarlane and Bright: Basis of estoppel is merely to protect B’s reasonable reliance where A can be said to be responsible for the expectation on which the reliance was based

    • Pascoe v Turner [1979]: D suggested giving entire house to C as relief = excessive.

      • Cumming Bruce LJ:

        • Court should consider all the circumstances, and must decide what is the minimum equity to do justice to D owing to detrimental reliance caused by C

          • Clear that C is poor and D is rich and will not suffer much loss while C will suffer grave loss

        • Equity cannot here be satisfied w/o granting remedy which assures to the defendant security of tenure without interference from C

          • and a clean break

• Should we have to expect some kind of proprietary right?

  • Cobbe v Yeoman’s Row [2008]:

    • Lord Scott

      • The problem in this case is that there is no proprietary right specifically examined

        • And unconscionability of conduct may well lead to a remedy but proprietary estoppel cannot be the route to it

        • To treat a “proprietary estoppel equity” as requiring neither a proprietary claim by the claimant

          • but simply unconscionable behaviour is a recipe for confusion

  • Dixon: does ensure that we don’t create new rights ad hoc

    • The law of real property places limits on the ability of persons to create property rights--usually, the parties must employ a degree of formality.

      • The extent to which estoppel permits the claimant to obtain a property right without such formality

        • necessarily contradicts the policy of certainty that is inherent in the statutory formality rules.

  • But there are other ways to limit this without requiring the claimant to specifically know what proprietary right they’re after

    • Thorner looks to how the ingredients of estoppel--assurance, reliance and detriment--should be defined so as to limit claims of estoppel.

      • Rather than reclassifying proprietary estoppel as a form of promissory estoppel

      • This is not to say they were wholly successful –

        • Lord Walker in Thorner = what sort of assurance depends hugely on the context

Is it what someone has detrimentally relied on?

• Gardner: There are hints of this, but different interpretations of what reliance means and how much you need

  • Narrowest: C unlikely to win

    • Khoons v Smith

      • C acts in reliance on her belief

        • Only if action was primarily motivated by the belief

  • Second:

    • Greasley v Cooke [1980]:

      • Lord Denning:

        • It is sufficient if the party, to whom the assurance is given, acts on the faith of it

          • in such circumstances that it would be unjust for the party making the assurance to go back on it

  • Widest:

    • Wayling v Jones [1995]: C relies detrimentally on X’s promise to give hotel on death. C then says that had X told him he’d gone back on promises, C would leave, but if had not made promises would probably have stayed even with detriments.

      • Balcombe LJ:

        • Although C agreed that if the promises had not been made he would have remained with X with the same detriments

          • The fact that X promised those promises meant that C would have left had X re-enged on them

        • Thus, X behaved in the way he did because of the promises made

          • And that is the only consideration that matters.

• And judges don’t seem to be want to be tied down to it when considering relief

  • Gillett v Holt [2001]:

    • Walker LJ: court must look at the matter in the round – should have discretion not just tied down to specific rules.

      • Detriment is required. But the authorities also show that it is not a narrow or technical concept.

        • The requirement must be approached as part of a broad inquiry as to whether repudiation of an assurance is unconscionable in all the circumstances

Something between the two?

• General discretion between reliance and expectation?

  • Jennings v Rice [2003]:

    • Walker LJ:

      • Unlike Gardner suggests, the court does not have a completely unfettered discretion to do what it likes

        • If there is something close to a specific agreement then the court will likely give effect to it

      • However, If C’s expectations are uncertain then their specific vindication cannot be the appropriate test.

        • And giving effect to the expectation in proportion to the detriment will be appropriate.

• Problems

  • Gardner: The distinction is inapt

    • 1. Unlikely that many cases will fall clearly on one side or the other

    • 2. And Otter v Grundy avoided doing this as fact that analysing relationship breakdowns in terms of fault is generally distasteful and unrealistic

      • Means that we have encountered a problem Walker LJ’s distinction can’t deal with.

    • 3. Equally, while detriment is required to meet the expectation for non-bargain cases

      • The same could be said of the bargain cases –they also rely on detriment, but underlying assumption that detriment is equivalent to the expectation, so nothing in the distinction.

  • Calling it proportionality does not assist

    • Bright and McFarlane: This is the minimum equity to do justice

    • Gardner: What is proportionality?

      • Hard to say anything other than when C’s reliance and expectation interests differ, the judge should pitch the outcome somewhere between the two.

        • To pitch between two, expectation and reliance must be quantifiable

          • But clearly valid claim can arise where they’re not.

  • And other factors listed are not confined to expectation or reliance

    • Jennings v Rice [2003]:

      • Walker LJ:

        • Where C’s expectation is

          • Uncertain

          • Extravagant

          • Out of proportion to the detriment suffered

        • Then relief is reached by looking at a wide number of factors and exercising discretion:

          • C’s expectation and proportionality to detriment

          • The conduct of the parties

          • The need for a clean break

          • Alterations in D’s assets and circumstances

          • Other claims on D

          • Possible other factors

    • Gardner: none of the factors identified by Walker LJ in Jennings appear in the usual statement of estoppel

      • This is completely separate recipe under the official headline statement of estoppel

      • This would appear to be evidence of some other agenda.

Solving Unconscionability

• We’re not just trying to get round formality requirements

  • Moriaty:

    • Nature of remedies given suggest that proprietary estoppel is a device to avoid formality requirements

      • E.g. Pascoe v Turner: Court gave effect to the informal gift which should have been effected by deed

  • Problems with this theory

    • Smith: Effect of Pascoe was that court gave effect to informal gift w/o formality

      • But was not the only reason they gave for it.

    • Smith: Taking this approach means that this doesn’t really give court any discretion, so has been attacked on this ground

      • Because quite clearly the courts are using some form of discretion... if estoppel used to get round formality requirements, then remedy wouldn’t keep changing.

• We appear to be using estoppel to vindicate the normative implications of personal relationships

  • In many cases, C and D or not just strangers to one another – they have a relationship which transcends the things they do and say to one another, e.g. carer, parent etc.

    • This suggest that D should fulfil his duty to C which goes beyond what D has promised to do and what C has acted on reliance on.

  • The aim is to rectify unconscionability of a particular kind

    • C’s expectation and reliance are relevant because they are ingredients of the unconscionability.

      • So judges should seek an outcome which in their view best redresses the unconscionability

In what ways are proprietary estoppel and common intention constructive trusts distinguishable?

• Estoppel claims can exist in their own right – they don’t take effect via a constructive trust

  • But this seems to ignore s.116 LPA 1925, which sees estoppel claims as distinct.

• Similarities between the two

  • Both doctrines look at the intentions of the parties and the way C has acted on those intentions in order to see what conclusion should be made

    • Catalyst of bringing two concepts together has been actual agreement constructive trust –...