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What Is The Driver Behind Proprietary Estoppel Notes

Updated What Is The Driver Behind Proprietary Estoppel Notes

Land Law Notes

Land Law

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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...

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