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Proprietary Estoppel Assignment

LLB LAND LAW COURSEWORK
‘Given the large number of successful proprietary estoppel claims, there are very few
incentives for parties dealing with land to formalise their transaction’
Discuss critically
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’1 In such a case, the law will provide a remedy
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Estoppel was established by the English courts of equity, that it would be unjust
or inequitable for a person to go back on his word,2 or to act inconsistently with his previous
representations or deeds, whether these are expressed or implied, when another has acted thereon to
his detriment
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It enables informal arrangements to be enforced and proprietary rights to be acquired,
without complying with the formalities
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It will be shown that PE is very flexible - unlike promissory estoppel for example, PE can be
used to found an action, not merely defend one: it acts as a sword, as well as a shield
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6
As Cooke states: ‘the courts have consistently, with very few exceptions, protected the claimant’s
exceptions in interest when responding to estoppel, and protect expectators so far as it is possible’7
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What will be shown in this essay is the power of estoppel as
a remedy, where circumstances allow it
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The doctrine of PE was recognised by the House of Lords in Ramsden v Dyson and Thornton8 and
later by the Court of Appeal who established the Willmott v Barber9 probanda - this consisted of five
elements, which must be present before an estoppel will be granted
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App 4th 277
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3
Elizabeth Martin and Jonathan Law, Oxford Dictionary of Law (7th edn Oxford University Press 2009)
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B
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A
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6
In accordance with Land Property Act 1925 sections 52 and 53
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8
(1866) L
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L
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Proprietary Estoppel Assignment

Fry J, necessary to establish that it would be tantamount to fraud for individuals to assert their strict
legal right
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The importance of the Willmott10 probanda
has declined in recent years
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Indeed,
‘the criteria was only applicable to existing rights over another’s land, and even in such cases could be
unduly restrictive’12
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’13
An example of an estoppel arising from expectations about future rights is found in Crabb v Arun
DC14
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When he sold the
other plot, the Council did not grant the extended right of way
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However, owing to the defendants

subsequent conduct meant that compensation was no longer payable, the equity was therefore a right,
whose very nature was akin to a ‘deserted wife’s equity’15
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Denning MR adopted a more modern approach based on detrimental reliance
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It was sometimes difficult to establish estoppel based on the original criteria, so in Taylor Fashions
Ltd v Liverpool Victoria Trustees Co Ltd17 rather than ‘trying to fit claims into some preconceived
formula’18, Oliver J took a broader approach
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He did not disregard the Willmott20 probanda, but he felt that they may well be necessary when the
defendant has done a positive act
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D 96
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11
Kevin Gray and Susan Francis Gray, Elements of Land Law (3rd edn, London: Butterworths 2001) 770
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13
Ibid 371
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15
National Provincial Bank v Ainsworth [1965] AC 1175
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17
[1982] QB 133
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19
As per Oliver J in Taylor Fashions Ltd (n 17) 151-152
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Proprietary Estoppel Assignment

would be unconscionable for the representor to resile
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21 Each element is extremely flexible, but also vague, which means that an outcome is
often difficult to predict as will be shown
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This was a clear
case of representation as the claimant had spent money on the property under the belief that the
deceased had promised her that he would leave it to her in his will
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In Pascoe v Turner24, on the breakdown of a relationship the defendant
had promised his ex-partner that the house and everything in it was hers
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Based on this expenditure, the Court
decided to uphold a finding of PE and ordered a fee simple owner to transfer his estate to his former
partner
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Scott J held that PE could only arise in
connection with some particular asset
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The
assurance that the owner will act a certain way, will not necessarily amount to PE, especially in a
commercial setting, were ‘certainty and clarity are particularly important, and judges should be slow to
encourage the introduction of uncertainties based on their views of the ethical acceptability of the
behaviour of one of the parties’27
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While recognising that this might beg the question, Walker LJ notes in Thorner v Major29 that, for a
successful PE, the assurance has to be ‘must be clear enough
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’30 Although this might seem too vague and uncertain, it is consistent
with earlier authorities
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[1986] 1 WLR 1498
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F
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517 C
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24
[1979] WLR 431
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26
[2008] 1 WLR 1752
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28
Ibid
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22

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Proprietary Estoppel Assignment

right has been promised, nor to those where a preconceived test of certainty about the assurance has
been met
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The second element is that of reliance, which is closely linked to the third element of detriment
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This element can be a problematical area in trying to
determine who is to prove if the reliance occurred or not
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However, Denning MR stated in Greasley v Cooke32
‘…once it is shown that a representation was calculated to influence the judgement of a reasonable
man, the presumption is that he was so influenced
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The burden of proof rests on the
person contesting the estoppel to show that the claimant did not rely upon it
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35
In addition, ‘the promises relied upon do not have to be the sole inducement for the conduct: it is
sufficient if they are an inducement’36, as illustrated in Campbell v Griffin37
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’38 In many cases detriment consists of the expenditure of money, as
could be seen in Grant v Edwards39, but it does not necessarily have to do so
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The claimant must show that he acted to his detriment and

significantly altered his position in reliance on the representation
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Taylor Fashions Ltd (n 17)
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33
As per Denning MR in Birkrom Investments Ltd v Carr [1979] QB 467 at 482-3
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35
See also Singh v Sandhu (unreported, Court of Appeal, 4 My 1995) and Price v Hartwell [1996] EGCS 98
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37
[2001] EWCA Civ 990
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39
[1986] Ch 638
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31

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Proprietary Estoppel Assignment

current conduct was unconscionable’41 as illustrated in Sledmore v Dalby42
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Generally, the
following eight factors are determinative43: how the promise/representation and reliance upon it were
induced; the content of the promise/representation; relative knowledge of the parties; parties' relative
interest in the relevant activities in reliance; nature and context of the parties' relationship; parties'
relative strength of position; history of the parties' relationship; and steps, if any, taken by the
promisor/representor to ensure he has not caused preventible harm
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Lim Teng Huan v Ang Swee Chuan45 saw the Privy Council remove PE from its roots in equity; it held
that all that was required to claim PE is representation, reliance and detriment and that no
unconscionable conduct was necessary
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Again, the history of PE is somewhat confusing and lacks
consistency
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In Taylor v Dickens48, the
claimant was told by his employer that he would inherit the house when she died, but before she died
she revoked all three wills; his claim failed, as inheritance by estoppel requires specific promise
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The courts can grant a
discretionary remedy in some circumstances - for those who have acted in the belief that they would
acquire some rights in or over land
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It is up to
the court to decide whether it is conscionable for the owner of the land to go back on their
representations, but court will seek to achieve ‘the minimum equity to do justice to the claimant’49
after considering all the circumstances of each case
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‘In some cases the court has decided that the equity can be satisfied only by giving effect to
the expectations which the representation has encouraged or even exceed expectations’50, as seen in
Crabb51, although this is rare
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(1996) 72 P & CR 196
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44
As per Scott LJ in Cobb v Yeoman’s Row Management Ltd [2008] 1 WLR 1752
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46
[1994] 68 P & CR 93
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48
[1998] 3 FCR 455
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50
MacKenzie and Phillips (n 12) 381
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52
Gillett (n 34)
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42

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Proprietary Estoppel Assignment

at all
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If it were
otherwise, we would be requiring of estoppel the same degree of certainty as that required for a valid
contract or grant, but estoppel is not about enforcing agreements or grants, it is about remedying
unconscionability
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unconscionable result
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In Jennings57 it was
confirmed that giving effect to the representor’s promises is the only way of doing justice to the
claimant
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She was not named in the will, but it was held that she had gone beyond the role of
girlfriend and there was reliance upon the promise made, and once reliance was made upon the
promise, it then became irrevocable in equity
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‘It is impossible to develop a coherent understanding of when a
claimant will be successful and we are left with the injunction that everything is hugely dependent on
context
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However, this individual approach
increases uncertainty in matters affecting property
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A major point of uncertainty concerns the effect of the doctrine on purchasers or mortgagees who take
an interest in the land before any order is made by the court to satisfy the equity in proceedings against
the original owner or mortgagor
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Both these suggestions are problematic
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[2002] EWCA Civ 159
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57
Jennings (n 56)
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59
[2003] EWCH 841 (Ch)
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61
MacKenzie and Phillips (n 12) 384
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The state of the third party’s knowledge would be
particularly important when considering the question of unconscionability
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That the doctrine can and should be able to operate against these third parties is generally agreed
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The courts have acknowledged that this
is an outstanding issue
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’65
The doctrine of PE is becoming increasingly important in English law
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’67

However, the

‘relationship between common intention constructive trusts and PE forms the subject matter of lively
academic discussion’68
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Nourse LJ suggested that the court might decide to solve the problem either by assimilating the
principles of Gissling71 and those of PE, or even by ‘following the recent trend in other commonwealth
jurisdictions towards a more generalised principles of unconscionability and unjust enrichment’
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The modern emphasis on the prevention of unconscionable conduct as the
basis of the doctrine, seen in cases such as Taylors Fashions73, suggests that dealing with the third
party problem ought to involve consideration of the conscionableness or otherwise of that party’s
conduct
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PE does seem to have had a confusing history, as seen in Matharu75, where Roch LJ reverted back to
the Willmott76 criteria some 100 years after its conception, and after it was replaced by the three
62

Milne (n 38)
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64
[1967] 2 QB 379
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66
[1971] AC 886
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69
Ramsden (n 8)
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71
Gissling (n 66)
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73
Taylor Fashions Ltd (n 17)
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75
Matharu (n 46)
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The doctrine has to rely on the judges understanding of PE,
along with their willingness to grant the estoppel
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STUDENT DECLARATION
I, student number 150064, declare that this piece of work contains 2621 words
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BIBLIOGRAPHY
Books:
Burn EH, Maudsley and Burn’s Land Law Cases and Materials (6th edn, London:
Butterworths 1992)
Chappelle D, Land Law (Pearson 2004)
Dalton P, Land Law (4th edn, Pitman 1996)
Gray K and Gray S, Elements of Land Law (3rd edn, London: Butterworths 2001)
Green K and Cursley J, Land Law (4th edn, Palgrave 2001)
MacKenzie J and Phillips M, Textbook on Land Law (14th edn, Oxford University Press 2012)
Martin E and Law J, Oxford Dictionary of Law (7th edn Oxford University Press 2009)
Oakley AJ, Megarry’s Manual of the Law of Real Property (8th edn, London: Sweet and
Maxwell 2002)
Riddall JG, Land Law (6th edn, London: Butterworths 1997)
Smith R, Property Law (4th edn, Pearson 2003)
Sparkes P, A New Land Law (2nd edn, Hart 2003)
Spence M, Protecting Reliance: The Emergent Doctrine of Equitable Estoppel (Oxford
University Press 1999)
Stevens J and Pearce R, Land Law (3rd edn, London: Sweet and Maxwell 2005)
Journals:
76
77

Willmott (n 9)
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Proprietary Estoppel Assignment

Barnsley DG, ‘Rectification, trusts and overriding interests’, (1983) Conveyancer 361
Battersby G, ‘Contractual and estoppel licences as proprietary interests in land’, (1991)
Conveyancer 36
Battersby G, ‘Informal Transactions in Land, Estoppel and Registration’, (1995) 58 Modern
Law Review 637
Baughen S, ‘Estoppel over land and third parties
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F
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517 C
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A
Jennings v Rice [2002] EWCA Civ 159
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Proprietary Estoppel Assignment

Layton v Martin [1986] 2 FLR 227
Lim Teng Huan v Ang Swee Chuan [1992] 1 WLR 113
Lloyds Bank plc v Carrick [1996] 4 All ER 630
Matharu v Matharu [1994] 68 P & CR 93
Moorgate Mercantile v Twitchings [1976] 1 QB 225
National Provincial Bank v Ainsworth [1965] AC 1175
Ottey v Grundy (Executor of TT Andreae) [2002] EWHC 2858
Pamela Jiggins V Maureen Ellen Brisley & 5 ORS [2003] EWCH 841 (Ch)
Pascoe v Turner [1979] 1 WLR 431
Price v Hartwell [1996] EGCS 98
Ramsden v Dyson and Thornton (1866) L
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L
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App 4th 277
Wayling v Jones [1993] 69 P & CR 170
Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204
Willmott v Barber (1880) 15 Ch
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Available from http://www
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com/vle [Accessed 30/05/2013]

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Proprietary Estoppel Assignment

LexisNexis

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