First Class Land Law Essay - Proprietary Estoppel

Grade: 70

QUESTION

In determining whether the test of proprietary estoppel has been established, the court
draws on a wide range of factors. Critically discuss the doctrine of proprietary estoppel by
reference to the following issues:
(a) How the court determines the specificity of the assurance required and the approach
taken in the commercial context;
(b) How the court determines reliance;
(c) How the court determines detriment and, additionally, the role of detriment in
assessing unconscionability.


ANSWER

This essay aims to critically discuss the court’s approach to determining whether the test of

proprietary estoppel (PE) has been established. Whilst it retains critics on its unpredictability, the

wide scope for judiciary discretion enables a flexible application which prevents unconscionability.



This essay will first define PE before examining how the courts assess each element of the test,

questioning whether their approach is consistent, clear, and effective. Finally, this essay will

establish if the court’s wide discretion undermines or enhances PE and if it needs reform.




What is PE?




Originating from Ramsden v Dyson1, PE is where a person acts to their detriment in reliance on

assurances made that they would have a future property right. The doctrine governs the informal

emergence of property rights, despite rights usually requiring satisfaction of statutory formality

requisites such as written contracts or deeds. Therefore, PE is the courts’ “equitable jurisdiction” to

provide justice in situations where results arising from an application of rigorous legal rules would

cause results “sufficiently at odds with a party’s reasonable expectations to ‘shock the conscience of

the court’”.2


1
[1866] LR 1 HL 129.
2
Philip Sales, ‘Proprietary Estoppel: Great Expectations and Detrimental Reliance’ (2022).

, Grade: 70




Oliver J in Taylors Fashions Ltd v Liverpool Victoria Trustees Co. Ltd3 outlined the four elements

required to make a claim to be assurance, reliance, detriment, and unconscionability, which are

considered holistically. Whilst Chitolie argues this criterion fails to provide clarity, leaving much to be

speculated or deduced from precedent,4 each element has thresholds to ascertain equity and mitigate

over-flexibility.




A. Assurance




Firstly, an assurance must have been made by a landowner to the claimant suggesting they had or

would have proprietary rights in the landowner’s land.5 This can take the form of express words,

passive informal promises, or inaction if they meet the ‘clear enough’ threshold established by Lord

Walker in Thorner v Major. 6 The court construed the claimant’s reliance on a compilation of hints,

indirect remarks, and words as binding despite no express representation having occurred, deducing

the effect of words depends on their ‘factual context’. Therefore “a statement that is ambiguous and

unclear can be clear and unambiguous in another”,7 with the courts deeming Habberfield v

Habberfield8 satisfied the threshold, but not Yeoman’s Row Management Ltd v Cobbe 9 because there

was “total uncertainty as to the subject of the benefit”.10 Subsequently, whilst a flexible contextual

examination “operates as a bar to prevent… unconscionable conduct”,11 parties are arguably

uncertain whether they can be liable for their words or conduct. This is emphasised by how the

Court of Appeal came to a different decision in Thorner, which suggests equivalent cases can be

3
[1982] QB 133.
4
S Chitolie, Is the Doctrine of Estoppel Sound in Theory and Practice? (University of Central Lancashire 2019)
<https://books.google.co.uk/books?id=XCN0zQEACAAJ>.
5
Thorner v Major [2009] UKHL 18.
6
ibid.
7
ibid per Lord Neuberger at 84.
8
[2019] EWCA Civ 890.
9
[2008] UKHL 55.
10
Thorner (n 5) per Lord Neuberger at 94.
11
Chitolie (n 4).