land law essay on proprietary estoppel

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Land Law Essay on Proprietary Estoppel

Lord Denning in Crab v Arun stated that the function of proprietary estoppel is " …to prevent a person from insisting on his legal right…whether arising under contract, or on his title deeds, or by statute…when it would be inequitable for him to do so having regard to the dealings which have taken place between the parties. " This doctrine restrains a landowner from making unconscientious withdrawal of his representation if the person to whom it was made has relied upon it to his detriment as it would be unconscionable. In essence, PE is a set of principles whereby an owner of a land may be held to have conferred some right or privilege connected with the land despite the absence of formalities. It is submitted that since PE is an equitable doctrine, it allows judges to do justice where the strict adherence to the law may result in unfairness. This view is supported by Martin Dixon in his book " Modern Land Law " where he explained that this doctrine is another example of the intervention of equity to mitigate the consequences of lack of compliances with the formality requirement of the common law or statue. As Elizabeth Darlington wrote in her article on proprietary estoppel for Zenith Chambers, Proprietary estoppel, unlike the related doctrine of promissory estoppel, gives rise to a cause of action and does not merely operate as a defence as can be seen in Thorner v Major. This means that PE not only can be used as a 'shield' but also a 'sword'. The question requires a discussion on whether this doctrine is one which shows flexibility, proportionality and fairness, in doing so, it is required to look at the requirements of a claim and how it serves its purpose to claimants. The development of this doctrine can be seen through the way courts approach this doctrine and it can be seen in early cases such as Ramsden v Dyson that the courts initially adopted a broad approach in establishing this doctrine. Since a successful claim in proprietary estoppel could result in the creation of interest in land that affects estate owner and future purchasers and transferee of land, it is not surprising the conditions have become stricter. These conditions were first codified by Fry LJ in Willmott v Barber where he identified the five probanda of proprietary estoppel which is quite big of a hurdle for claimants. As a reflection of modern condition, the five probanda by Fry LJ have been largely abandoned and a more modern approach which is much more flexible is introduced. According to Oliver J in Taylor Fashions v Liverpool Victoria Trustees, a claimant will be able to establish an estoppel if they can prove an assurance, reliance and detriment in circumstances in which it would be unconscionable to deny a remedy to the claimant. This modern approach provided more effective remedy as the requirement needed to make a claim has significantly been 'watered down'. This shows that the doctrine of PE has changed in the sense that it had become more flexible with less

Related Papers

Munir Mughal

The body of law in a State consists of two parts, substantive and adjective law. The former prescribes those rules of civil conduct which declare the rights and duties of all who are subject to the law. The latter relates to the remedial agencies and procedure by which rights are maintained, their invasion redressed, and the methods by which such results are accomplished in judicial tribunals. An Estoppel is a rule of evidence. An estoppel is a bar that prevents one from asserting a claim or right that contradicts what one has said or done before or what has been legally established as true. It is a bar that prevents the re-litigation of issues. It is an affirmative defense alleging good-faith reliance on a misleading representation and an injury or detrimental change in position resulting from that reliance. “Estoppe” says Lord Coke, comes from the French word estoupe, from whence the English word Stopped; and it is called an estoppel or conclusion, because a man’s own act or acceptance stoppeth or closesth up his mouth to allege or plead the truth. Estoppel may also be defined to be a legal result of conclusion arising from an admission which has either been actually made, or which the law presumes to have been made, and which is binding on all persons whom it affects. In using the term estoppel, one is of course aware of its kaleidoscopic varieties. One reads of estoppel by conduct, by deed, by latches, by misrepresentation, by negligence, by silence and so on. There is also an estoppel by judgment and by verdict: there, however, obviously involve procedure. The first named varieties have certain aspects in common. But these aspects are not always interpreted by the same rules in all courts. The institution seems to be flexible. Kinds of Estoppels Estoppels are many kinds, namely, • Administrative collateral estoppel. • Assignee estoppel. • Assignor estoppel. • Collateral estoppel. • Equitable estoppel. • Estoppel by conduct. • Estoppel by Contract. • Estoppel by deed. • Estoppel by election. • Estoppel by inaction • Estoppel by judgment. • Estoppel by latches. • Estoppel by misrepresentation. • Estoppel by negligence. • Estoppel by record. • Estoppel by representation. • Estoppel by silence. • Estoppel by standing by. • Estoppel by verdict. • Estoppel by warranty. • Estoppel in pais. • Estoppel on the record. • File wrapper estoppel. • Judicial estoppel. • Legal estoppel. • Marking estoppel. • Promissory estoppel. • Prosecution history estoppel. • Quasi estoppel. • Technical estoppel. There is also another kind of estoppel which is called the Proprietary Estoppel. In Re: Basham (dec’d) Mr. Edward Nugee (sitting as High Court judge) set out the principle of proprietary estoppel, in its broadest form, in the following terms: “Where one person, A, has acted to his detriment on the faith of a belief, which was known to and encouraged by another person. B, that either has or is going to be given a right in or over B property. B cannot insist on his strict legal rights if to do so would be in consistent with a belief.”

"This chapter considers the restrictive vision of proprietary estoppel put forward by Lord Scott and Lord Walker in the House of Lords in Yeoman’s Row v Cobbe [2008] UKHL 55. It explains that the impact of taking their arguments seriously would be the elimination (or, at least, the severe restriction) of one of the three distinct principles subsumed within proprietary estoppel, ie the promise principle stated by Lord Kingsdown in Ramsden v Dyson. The chapter suggests that, although the approach in Cobbe runs counter to the current of equitable development over the last forty years, it does highlight important issues of principle surrounding the scope of proprietary estoppel. Despite the tendency to downplay the role of promise within the doctrine, the pre-Cobbe version of proprietary estoppel ventures into the territory of the law of contract, doing so only in respect of promises related to land/property (without any convincing justification as a matter of principle for this restriction). Rather than seek to deal comprehensively with the very large question as to the merits or otherwise of Lord Kingsdown’s promise principle, this chapter seeks to address a more modest set of questions. First, it points out that the particular concern which seems to have animated the judges in Cobbe – that it is wrong to allow C to succeed on the basis of a promise which C knows is binding only in honour – can be accommodated within the conventional modern understanding of proprietary estoppel, without any need to eliminate or severely curtail Lord Kingsdown’s principle. Secondly, the chapter addresses the seductive suggestion that a distinction should be drawn between the commercial and the domestic contexts, with the restriction upon proprietary estoppel suggested in Cobbe applying only in the commercial context. It concludes on the basis of a number of different arguments, that this suggestion does not represent a desirable avenue of development for the law. One of the points made against any application of a mistake requirement in the context of the promise principle is that this requirement makes sense only in the context of the acquiescence principle; the suggestion that it should be applied more broadly appears reminiscent of attempts in the past to apply the probanda to all proprietary estoppel cases. In terms of the future development of the law of estoppel, what is needed is a willingness to separate out for analysis the distinct principles which have, for historical reasons, been grouped together under the heading of proprietary estoppel. The emphasis on ‘unconscionability’ and ‘synthesis’, encouraged by the overrated judgment of Oliver J in Taylor Fashions, have contributed to the current confused state of the law. Following the debacle represented by Cobbe, it is time for a somewhat more reflective approach."

Elizabeth Blankendal

In this paper I set out to find what Lord Hoffmann once called ‘the moral values which underlie the private law concept of estoppel’. More precisely, I want to look for the justifying principle that underlies the doctrine of proprietary estoppel (PE). The function of PE, I argue, is to enforce a moral obligation to compensate another person (R) for the way in which he changed his position to his detriment in reliance on your representation, or give him a timely warning not to rely on it. I call it LPA (for Loss Prevention Assurance). The LPA obligation is versatile in its mode of acquisition; that is, one can either intentionally enter a relationship of which the LPA is the constitutive obligation, or be placed under the obligation as a result of her representation even where she never intended to assume any duties thereby. This versatility, I argue, can greatly help us to understand why the legal enforcement of this obligation, namely PE, operates in the way it does. In this paper I will focus on the voluntary mode of the LPA obligation, as I believe that its great explanatory potential for the legal doctrine has been unduly neglected. The paper argues that the state is justified in enforcing this moral duty for two reasons: one is that by doing so, the law protects and fosters the valuable practice of assuming LPA commitments, thus securing the benefits that the practice can hold for both O and R. The second is that it would correct the harm done to the disappointed R. This dual justification for a state enforcement of LPA obligations, as empowering O and protecting R, can explain why the legal rule that sets to do the job, i.e. PE, is particularly vigilant in guarding R’s rights. Thus, even if the courts many times award R his expectation value, this should only be done as a necessary measure to ensure that R is fully compensated for his reliance loss. In that way, while the interpretation I suggest can be largely reconciled with the results in most of the case law, it rejects the language of ‘promise’ in which much of the case law is cast, suggests a significant change in the baseline for the remedy, and supports a minimalist approach to the award of proprietary remedy.

Research in Management of Technology and Business

Mitchell McInnes

Due to the high value that it placed upon the ownership of land, the common law traditionally was wary of intervening if the plaintiff non-contractually improved the defendant’s land. For the most part, liability was imposed only if the landowner acted unconscionably according to the doctrine of proprietary estoppel. Recently, however, Canadian courts have expanded the scope of relief in two respects. First, the test for proprietary estoppel has been revised and relaxed. Second, the cause of action in unjust enrichment is now widely employed as an alternative source of liability. While neither development is necessarily wrong, the implications of those changes have received too little attention. A sensitive balance must be struck between the interests of worthy claimants and the interests of innocent landowners

King's College Law Journal

Donal Nolan

The discussion in this article is driven by the conviction that doctrines of promissory and proprietary estoppel remain underdeveloped in English law, and that this doctrinal immaturity has resulted in an inadequate legal response to the problem of detrimental reliance on non-contractual statements of intention. In addition, it is contended, English law has in this respect lagged behind the law in two other common law countries, Australia and the United States. The article is divided into three main parts. The first part consists of a brief account of the current state of play in English law. In the second and third parts of the article, the focus of attention shifts to Australia and the United States respectively. An outline of developments in these countries is provided, and an attempt is made to identify the lessons that can be learned from those developments. Keywords: equitable estoppel, promissory estoppel, proprietary estoppel, detrimental reliance, United States law, Australian law.

Modern Studies in Property Law - Volume 7

Warren Barr

WAN IZATUL ASMA WAN TALAAT

Promissory estoppel is an equitable doctrine applicable in contract law, which applies when one party to a contract promises the other, by words or conduct, that he will not enforce his right under the contract. This doctrine was first promulgated to prevent any occurrence of inequity or injustice caused by the action of the promisor in backing out from his promise, which had initially led the promisee to act to his detriment. Traditionally, there are five limitations to this doctrine, which are derived from the High Trees and Hughes cases; that promissory estoppel only operates as a shield and not as a sword; that there must be a pre-existing contractual relationship; that there must be a clear and unequivocal undertaking; that there must be a proof of detrimental reliance on the representation; and that there shall only be a temporary suspension of contractual obligations and rights. Nevertheless, this doctrine continues to evolve that subsequently begins to affect its parameters....

Khong MeiYan

The classic model of English Contract law is a bargain and a bargain postulates an exchange. In his much respected work, Sir Frederick Pollock rightfully explained that "[a]n act or forbearance of one party, or the promise thereof, is the price for which the promise of the other is bought, and the promise thus given for value is enforceable." Consideration is therefore historically a fundamental doctrine of English law and has equally been the subject of much criticism owing to its rigidity and lack of coherence. Lord Steyn3raised an important question as to why should the law refuse to sanction a transaction for want of consideration where parties seriously intend to enter into legal relations and arrive at a concluded agreement? A major failing of the bargain theory, it is said, is that it excludes detrimental reliance as a basis for enforcing a promise but allows for an executory promise to constitute consideration. One good example is the controversial case of Stilk and Myrick. Accordingly, attempts have been made to circumvent the rigors of the doctrine using equitable principles which shifts the conceptual focus away from the notion of exchange to that of reliance to give effect to the reasonable expectations of parties or by taking into account whether the parties intended to be bound in the first place. This essay analyses the sweeping statement made by Lord Denning in his judgement in Combe v Combe: "the doctrine of consideration is too firmly fixed to be overthrown by a side-wind".

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Land Law (3rd edn)

• Acknowledgements
• New to this Edition
• Guide to Using this Book
• Table of Cases
• Table of Legislation
• 1. Introduction to Land Law
• 2. Registered Land
• 3. Unregistered Land
• 4. Adverse Possession
• 5. Co-ownership
• 6. Interests in the Family Home
• 7. Licences
• 8. Proprietary Estoppel
• 10. Leasehold Covenants
• 11. Easements and Profits
• 12. Freehold Covenants
• 13. Mortgages
• 14. Land Law and Human Rights

p. 304 8. Proprietary Estoppel

• Chris Bevan Chris Bevan Associate Professor in Property Law Durham Law School, Durham University
• https://doi.org/10.1093/he/9780192856760.003.0008
• Published in print: 07 April 2022
• Published online: September 2022

This chapter explores the doctrine of proprietary estoppel—a means by which a person may acquire a proprietary interest in another’s land. If made out, a claim to proprietary estoppel allows for the informal creation and acquisition of rights in land. Rather than just being raised as a defence against legal claims (as is the case, for example, in promissory estoppel), it is this that sets proprietary estoppel apart and represents its major point of distinction from other estoppels. This chapter considers the requirements for establishing an estoppel claim and the effect of an estoppel on third parties. With a bounty of case law—new decisions seemingly handed down almost monthly—proprietary estoppel is having its moment in the sun and remains one of the liveliest and most productive areas of land law today.

• proprietary estoppel
• informality
• representation
• unconscionability

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• Practical Law

Proprietary estoppel: great expectations

Practical law uk articles w-037-7046  (approx. 4 pages), a disputed inheritance, the parents’ appeals.

• A successful claimant’s expectation, in this case of the inheritance of a family farm, is an appropriate starting point when considering a remedy.
• The remedy granted by the High Court, namely the payment of a lump sum that would result in the sale of the farm, went beyond what was necessary in the circumstances.

Supreme Court decision

Practical implications, proprietary estoppel.

• Contentious Private Client
• Farm Partnerships and Farming Agreements
• Title Issues
• Farm Dwellings
• Injunctive Relief
• United Kingdom

Law Notes Land Law Notes

• Proprietary Estoppel Notes

Updated Proprietary Estoppel Notes Notes

Land Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB land law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).

These were the best Land Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highest results in ...

The following is a more accessible plain text extract of the PDF sample above, taken from our Land Law Notes . Due to the challenges of extracting text from PDFs, it will have odd formatting:

What is proprietary estoppel?

In general, the term ‘estoppel’ is used to refer to situations in which a party is prevented (stopped, or estopped ) from denying the truth of a particular matter of fact or of law. Proprietary estoppel, then, is a means by which a party (B) can gain some protection against an owner of land (A) even if B has no contract with A and even if A has not formally given B a property right in relation to A’s land.

Proprietary estoppel is different from other forms of estoppel, however. Unlike promissory estoppel, proprietary estoppel is not merely a means by which B can prevent A from asserting a right against B. Proprietary estoppel is a means by which B can acquire a right against A : it can be used not only as a ‘shield’ to defend B from A, but also as a ‘sword’ to impose a duty on A, owed to B. An equity by estoppel is a proprietary interest in land – it is capable of binding third parties .

In Crabb v Arun DC D reneged on a promise to build a second right of way from C’s land. C sold a portion of their land in reliance on this promise, and C was left landlocked without a right of way.

Held: D was estopped

It would be inequitable for D to renege on his promise – the promise induced C to act to C’s detriment.

Lord Denning said that “Promissory estoppel can only be used as a defence and not to found a cause of action whereas proprietary estoppel can so be used” .

In Thorner v Major P owned a farm which P’s brother D worked on for years without being paid. D believed that upon the death of P, D would inherit the farm. There was no explicit assurance, however D’s belief arouse after 15 years of P’s encouraging conduct

Held: P’s estate was under a duty to transfer the farm to D

If the requirements of proprietary estoppel are satisfied with respect to B, B will acquire an equity by estoppel .

Proprietary estoppel itself does not convey the relevant right in property to B; rather, the court might choose to order A to give the property right to B on the basis of estoppel.

McFarlane (2015) organises the doctrine as having three distinct strands:

A’s acquiescence (acceptance of something without protest) in B’s mistaken belief as to B’s current rights

In Ramsden v Dyson Lord Carnwath said that

“if a stranger builds on my land supposing it to be his own, and I, perceiving his mistake, abstain from setting his right and leave him to persevere in his error, a Court of equity will not allow me afterwards to assert my title to the land on which he had exp[ended money on the supposition that the land was his own. It considers that when I saw the mistake into which he had fallen, it was my duty to be active and state my adverse title”

A’s r epresentation to B of an existing state of affairs

A’s promise to B (as in Thorner v Major )

What are the requirements for proprietary estoppel?

It should be noted that the rules for the acquiescence-based strand of proprietary estoppel are rather different to those of the other two.

Requirements for Acquiescence-Based Proprietary Estoppel

Fry J set out the requirements for the acquiescence-based strand in Wilmott v Barber:

“the principle applies where B adopts a particular course of conduct in reliance on a mistaken belief as to B’s current rights and A, knowing of B’s belief and the existence of A’s own inconsistent right, fails to assert that right against B”

The requirements can thus be stated as

B has made a mistake as to their current rights

This requirement is sourced from Ramsden v Dyson

It was denied in Lester v Woodgate , however this is only a Court of Appeal decision, while Ramsden is House of Lords

B acts to his detriment in reliance on this mistaken belief

A has knowledge of B’s mistaken belief

A has knowledge of his own inconsistent right

A fails to assert his own right

Requirements for Promise/Representation-Based Proprietary Estoppel

NOTE : Walker LJ in Gillett v Holt asserted that the doctrine of proprietary estoppel cannot be treated as subdivided in to three or four watertight compartments . The idea that equity is to prevent unconscionable conduct permeates all the elements of the doctrine.

Lord Walker said in Thorner v Major that the doctrine is based on three main elements, despite these often being stated in slightly different terms:

A representation or assurance made to B – A must assure B that B has or will acquire a right in A’s land

A must assure B that B has or will acquire a right in identified property – the exact land needs to be sufficiently certain ( Thorner v Major)

This is not a strict requirement – the farm varied in size over time in Thorner v Major , however assurances relating to ‘the farm’ were sufficient

The right does not need to be a proprietary right, it can be personal ( Plimmer v Mayor of Wellington )

The assurance does not need to be clear and unequivocal like in the case of promissory estoppel

In Thorner v Major an explicit assurance was never made by A, a number of oblique remarks implying that C would receive the farm were sufficient

Lord Walker said in that case that what will be ‘clear enough’ will depend upon the context

It must be an assurance that in its context is so certain that it is reasonable for the other party to rely on it

This is an example of the requirements all bleeding in to one another (see Walker LJ above)

In Walton v Walton, Lord Hoffmann distinguished between the requirements of a contract and proprietary estoppel in terms of certainty. An assurance which is not certain enough to be contractually binding might still be enough to form the basis of an estoppel claim

Because proprietary estoppel does not impose an immediate duty in the same way that contractual obligations do the difference in certainty can be justified

Per Lord Hoffmann in Thorner v Major, whether or not A has made an assurance does not depend up whether A subjectively intended to make an assurance, but rather whether the...

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More Land Law Samples

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• The Creation Of Mortgages Notes
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• Ways To Get Round The Formality Requirements Notes
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• What Is The Driver Behind Proprietary Estoppel Notes
• What Is The Driver Behind The Family Homes Cases

Land Law – Proprietary Estoppel Essay Example

• Pages: 8 (1956 words)
• Published: August 20, 2018
• Type: Research Paper

Proprietary estoppel protects a person who has a non contractual agreement over land but they have suffered a detriment due to them acting upon a reliance based on an assurance made by the claimant. There has been much discussion in recent case law and academic commentaries as to the elements which make up the nature of proprietary estoppel. Unconscionaibility is a major point for discussion in deciding whether it should be treated as a separate element or if it is linked into the three main elements.

This essay will consider and discuss the nature of proprietary estoppel and the two views on unconscionaibility; whether there will always be unconscionaibility if there has been a non-performance of an assurance causing the claimant to suffer a detriment based on the assurance which they relied on or if unconscionaibility should be proven as a separate element

in each case.

The starting point of proprietary estoppel was in the case of Willmott v Barber (1880) where five criteria were laid down, which had to be satisfied by a person claiming proprietary estoppel and the courts applied these criteria to a wide range of proprietary estoppel claims.

However these criteria were criticised for being too strict leading to the broader approach established in Taylor Fashions Ltd v Liverpool Trustees Co Ltd (1982) where Oliver J stated: ‘whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment’. Although the approach became broader there still remained essential elements which must be satisfied for a successful claim.

style="text-align: justify;">The more modern approach towards proprietary estoppel is based on three main elements, firstly an assurance of land or property being made to the claimant, the claimant relying on the assurance which has been made and finally the claimant suffering a detriment as a consequence of relying on the assurance made. The main point for discussion and questioning in proprietary estoppel is the role of unconscionaibility and whether it should be treated as a fourth element which too must be satisfied in order for a claim to be successful or if unconscionaibility is interlinked with the other elements of proprietary estoppel.

Proprietary estoppel acts as ‘a sword and a shield’ and can be used in one of two ways. ‘Put positively, the reason why it is possible to use proprietary estoppel to generate a property interest in a favour of a claimant despite the absence of the normal formality rules is because of the need to prevent unconscionable conduct. This is why unconscionaibility is the foundation of estoppel. It is the antidote to the otherwise fatal absence of formality. ’ This is one of the views on unconscionaibility which suggest that unconscionaibility is at the heart of proprietary estoppel rather than a separate element of it.

The first element of proprietary estoppel is encouragement where the claimant’s belief that they would have some rights over land or property has been encouraged by the promisor and this could have been done actively or passively. Active encouragement is seen in common expectation cases where the claimant has been actively persuaded through an express representation as in Inwards v Baker (1965) where a son was

actively encouraged to build on his fathers land in the expectation that it would be his in the future.

Common expectation cases are dealt with more generously by judges, compared to passive cases, as the promisor has lead the claimant to have a reasonable belief that they would acquire the land therefore leading them to rely upon that assurance causing them to suffer a detriment. It would be seen as unconscionable in a common expectation case for the claimant to have been encouraged to suffer a detriment for the promisor to then go back on their assurance, meaning that unconscionaibility is instantly a running theme in the elements as it can be seen at the first instance and should therefore not be treated as a separate element.

The encouragement could also be passive, for example a land owner standing by watching someone build on their land knowing that somebody is acting under a mistaken belief. The nature of a passive expectation made to the claimant can be distinguished in commercial and domestic cases as was seen in Cobbe v Yeoman’s Row Management Ltd (2008) where the House of Lords established that the expectation of an interest in land should not be vague in a commercial situation.

The expectation should be for ‘a certain interest in land’ for proprietary estoppel purposes which was not the expectation held by Cobbe therefore the expectation was held to be too vague. Lord Scott stated ‘Unconscionaibility in my opinion plays a very important part in the doctrine of equitable estoppel, in unifying and confirming, as it were, the other elements. If the other elements appear to be

present but the result does not shock the conscience of the court, the analysis needs to be looked at again. This statement shows how case law endorses the unconscionaibility approach as being interlinked with the other elements of proprietary estoppel however if all of the elements are not satisfied there can not be a claim for proprietary estoppel as is the case here. In domestic (family) cases, the nature of the expectation doesn’t have to be so specific as long as there is an interest or right in land that would amount to a significant expectation. The assurance made must be clear enough so that claimant is found to have relied upon.

Lord Walker stated in the case of Thorner v Major (2009) “There is no definition of proprietary estoppel that is both comprehensive and uncontroversial…the doctrine is based on three main elements, although they express them in slightly different terms: a representation or assurance made to the claimant; reliance on it by the claimant; reliance on it by the claimant; and detriment to the claimant in consequence of his (reasonable) reliance” One view on unconscionaibility stated that ‘Once there has been detrimental reliance on an assurance, it is unconscionable to withdraw it’ therefore if it cannot be proven that an assurance existed then it wont be unconscionable for it to be withdrawn showing that unconscionaibility is a running theme within proprietary estoppel rather than a separate element. One difficulty in deciding these kinds of cases is that although an assurance has been made to the claimant in the way of a will, the claimant is also aware that the will could be revoked

at any time therefore the question to be asked is whether their reliance based on the assurance was adequate. The second element of proprietary estoppel is reliance where the claimant must have been encouraged to rely on the promisor’s assurance which has caused them to suffer a detrimental loss by changing their position and there must be a sufficient causal link between this in that the encouragement must have caused the detriment suffered.

Reliance can not be treated as an element alone it has to have caused a change in the position of the claimant, if no detriment has been suffered then there can be no claim for proprietary estoppel. There are several ways in which the courts can show how the claimant was influenced to rely on the encouragement; firstly is by clearly showing that there has been a change in position by the claimants positive act, for example the claimant spending money on the land or making property improvements based on the assurance that it will become theirs, causing them to suffer a detriment. Where the claimant has acted in a way different to what he would had the assurance not been made nd relied on this can also show how the encouragement has influenced the reliance causing a detriment as in Jones (AE) v Jones (FW) (1977) where a son acted on the assurance of property becoming his left his job and house to live with his father, however had the assurance not had been made he would not have done this leading to the detriment that he suffered. There can be a presumption made that the claimant relied on the

assurances given to them based on there conduct and in these cases the burden is put onto the other party to prove that the claimant did not rely on the promises made and this is hard to prove as it is a subjective matter based on the claimants state of mind. This was the case in Greasley v Cooke (1980) where the defendant did not have to prove that she relied on assurances as it was presumed from her conduct.

The final element of proprietary estoppel is that the person must have suffered a detriment due to the reliance on the assurance which has caused a change in their position. The detriment suffered can be in many forms not just that of financial detriment although it must be substantial in making it unconscionable for the land owner to withdraw their promise of land to the claimant. Walton v Walton (1994) shows where financial detriment wasn’t the main detriment suffered, the claimant had suffered a personal detriment as he had spent years of his life relying on the assurance made to him that the farm would one day be his, and he couldn’t get those years of his life back. Public policy in formalities of contracts plays a major part in the deciding claims for proprietary estoppel.

Section 2 Law of Property (Miscellaneous Previsions) Act 1989 states that (1) A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document, or where contracts are exchanged, in each. This act stops

informalities in land transfers where a claimant would be expected to sign up a contract but hasn’t done so, as in Cobbe, and this is where they would turn to proprietary estoppel to try and show that the detriment which they have suffered is due to the unconsionability of the removal of the assurance which they had originally relied on. Proprietary estoppel acts as a way around formalities and a form of protection for those who have not followed contractual formalities in the transfer of land.

Why should people be able to use proprietary estoppel to make a claim for land where they have followed formalities and drawn up a contract as in Cobbe, it can be seen that it is not unconscionable for the promisor to withdraw as there is no contractual agreement. However in domestic cases where there wouldn’t always be an expectation of a legal contract to be drawn up proprietary estoppel can stop unfair decisions being made due to the lack of formalities where it would be unconscionable for the defendant to suffer a detriment due to an assurance on which they have relied. There are clearly two competing arguments against proprietary estoppel, the first being that ‘once there has been detrimental reliance on an assurance, it is unconscionable to withdraw it. Indicating that unconscionaibility is a function of the three elements. If unconscionaibility was seen as a separate element then it would be pointless in having formalities as it wouldn’t matter whether it was unconscionable or not as long as the other elements had been satisfied. The second view on unconscionaibility is that of it being a separate fourth

element and in some circumstance this can be seen as being successful for example in commercial cases where the first three elements of proprietary estoppel have been established but it would be unconscionable for the claimant to benefit due to the lack of formalities and contractual agreement.

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The History of Moscow City

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