Proprietary Estoppel
“In Thorner –v- Major, the House of Lords confirmed that a claimant seeking to establish a proprietary estoppel must prove three things: (1) that the defendant’s assurances or conduct in relation to identified property were sufficiently clear and unambiguous in all the circumstances, (2) to lead the claimant reasonably to rely on those assurances or conduct; (3) by acting significantly to his detriment, so that it would be unconscionable for the defendant to deny him any remedy.”
(Per Hayton and Mitchell: ‘Commentary and cases on the law of Trust and Equitable Remedies’, 13th edition, Sweet and Maxwell, page 78)
Critically analyse and evaluate this statement in light of recent developments in the law of proprietary estoppel.
Despite the lack of a definitive formulation, it is widely accepted that the elements of assurance, reliance and detriment must be present in order to found a claim of proprietary estoppel . The doctrine has however been widely criticised for being too flexible and uncertain. The main cause of this uncertainty is the lack of clarity surrounding the role of unconscionability. It has been stated that unconscionability is “at the heart of the doctrine,” and yet there is “little guidance as to what it means, little explanation of why it is at the centre and thus virtually no consideration of the role it might play in providing both a justification for, and a limitation on, successful estoppels” . Commentators have largely agreed that there is a “need to develop clear parameters for the operation of the doctrine, else it really will be a discretionary panacea for all ills whose application is unpredictable and uncertain.
Prior to Thorner v Major [2009] and Cobbe v Yeoman’s Row Management Ltd [2008] it had been 142 years since a case of proprietary estoppel had reached the House of Lords. Therefore it was hoped that these cases would give the judiciary a long awaited opportunity to clarify the doctrine.
In Cobbe Lord Walker
(Per Hayton and Mitchell: ‘Commentary and cases on the law of Trust and Equitable Remedies’, 13th edition, Sweet and Maxwell, page 78)
Critically analyse and evaluate this statement in light of recent developments in the law of proprietary estoppel.
Despite the lack of a definitive formulation, it is widely accepted that the elements of assurance, reliance and detriment must be present in order to found a claim of proprietary estoppel . The doctrine has however been widely criticised for being too flexible and uncertain. The main cause of this uncertainty is the lack of clarity surrounding the role of unconscionability. It has been stated that unconscionability is “at the heart of the doctrine,” and yet there is “little guidance as to what it means, little explanation of why it is at the centre and thus virtually no consideration of the role it might play in providing both a justification for, and a limitation on, successful estoppels” . Commentators have largely agreed that there is a “need to develop clear parameters for the operation of the doctrine, else it really will be a discretionary panacea for all ills whose application is unpredictable and uncertain.
Prior to Thorner v Major [2009] and Cobbe v Yeoman’s Row Management Ltd [2008] it had been 142 years since a case of proprietary estoppel had reached the House of Lords. Therefore it was hoped that these cases would give the judiciary a long awaited opportunity to clarify the doctrine.
In Cobbe Lord Walker
Bibliography: Balen, M., & Knowles, C. (2011). "Failure to estop: rationalising proprietary estoppel using failure of basis". Conveyancer and Property Lawyer , (3), 176-190. Dixon, M. (2010). "Confining and defining proprietary estoppel: the role of unconscionability.". Legal Studies , 30 (3) , 408-420. Dixon, M. J. (2009). "Proprietary Estoppel: a return to principle?". Conveyancer and Property Lawyer , (3) 260-268. Etherton, T. (2009). "Constructive trusts and proprietary estoppel: the search for clarity and principle". Conveyancer and Property Lawyer , (2), 104-126. GLLHG. (2009). "Proprietary estoppel - the pendulum swings again?". Conveyancer and Property Lawyer , (2), 141-145. McFarlane, B., & Robertson, A. (2009). "Apocalypse averted: proprietary estoppel in the House of Lords". Law Quarterly Review , 125 (Oct), 535-542.