Proprietary Estoppel

Property & Land Law

05 November 2021


Estoppel is a murky legal topic, encompassing a number of concepts that are easily confused.  This short note aims to momentarily clear the fog and allow a glimpse into some of those concepts.

The doctrine of estoppel goes back to at least the 1600s.  There are many forms including Proprietary, Promissory, Contractual, Estoppel by representation, Estoppel by convention, Estoppel by deed and Waiver by estoppel.  These forms are separate from common law estoppel which is unrelated.  Common law estoppel operates to preclude a person from denying something they have previously asserted.  It is part of the laws of evidence, is completely negative in operation and is not a cause of action.

We are only looking at proprietary estoppel.  There is an old saying (which means I have no idea where it originated), which states that estoppel is a shield not a sword.  With the exception of proprietary estoppel, the others can only be raised in a defence or reply to a claim.

Proprietary Estoppel

Proprietary estoppel is a means through which property rights may be affected or created.

It may come as no surprise to learn that many of the leading cases relate to family run farms and promises made to members of the next generation.  If you recognise the symptoms in your own situation, early advice may prevent problems later.

The essential elements of proprietary estoppel are:

  1. The owner of land induces, encourages or allows the claimant to believe that they have or will enjoy some right or benefit over owner’s property.
  2. In reliance upon that belief the claimant acts to their detriment, to the reasonably determined knowledge of the owner.
  3. The owner then seeks to take unconscionable advantage of the claimant by denying them the right or benefit which they expected to receive.

This is a simplified description.  There are many cases which explore the balance between encouragement and detriment, to say nothing of the form of detriment suffered. There is no definition of “unconscionable conduct”.  The court will take a broad view of the case overall and take into account the nature of the assurances made and the time they persisted for.

In terms of relief, the court will seek to satisfy equity in the best way possible.  This could range from granting the claimant a licence to operate the land, compensation in money (secured by a lien over the property) or transfer of all or part of the land either in fee simple or for a term of years.

There is nothing like a good case to demonstrate the issues and how they are resolved.  A recent case, Guest v Guest & another [2019] EWHC 869 (CH), involves, yes, a family farm.  The son claimed an interest in the farm owned by his parents based on assurances that he would inherit a substantial interest in it.  The son fell out with his parents and left the farm.  The father subsequently sought to change his will excluding the son completely and leaving the farm to two other siblings.  The court of first instance ordered the sale of the farm to pay a lump sum to the son.  This was upheld by the Court of Appeal.

Just for fun I will mention one of the earliest reported cases, Edlin v Battaly (1675) 2 Lev 152.  It reads like a Shakespeare play (in both lexicon and content) but appears to be about Mr. Edlin taking the promise of a lease on a property and acting upon it by spending a lot of money on building works.  Unfortunately, there was another leasehold interest (Mr. Battaly) which had laid dormant until the holder came home from being overseas for 20 years.  When Mr. Battaly tried to take possession of the title, Mr. Edlin sued on the basis that he should “hold the land till he be repaid his charges in building.”    I say it appears to be about that, but handwritten Elizabethan English is tricky.  It might equally be about a Scottish Thane who relied to his severe detriment on a promise made by three witches…

Estoppel is a complex area of law.  If you have any questions relating to this topic do not hesitate to get in touch with our Clerks.

For help, advice or if you wish to instruct a member of Chambers, please contact our Clerking team