Response to UK Property Law Questions
Response to UK Property Law Questions
Essay 7: Proprietary Estoppel
Since 2018, the UK courts have experienced a flurry of proprietary estoppel cases, which have led to more clarifications about the various elements of the doctrine. Ideally, the four key elements that must be established in proprietary estoppel as established in Thorner v Major [2009] are assurance/representation, reliance by the claimant, detriment as a result of the reliance, and unconscionability. Modern case law has successfully delineated the central components. For instance, the main principles are sufficiently clear and form a good base for evaluating the strengths and weaknesses of a potential claim. Despite the satisfactory delineation of proprietary estoppel’s elements from modern case law, there is room for greater precision and clarity, particularly relating to the nature of awards following a successful claim.
In terms of assurance/representation, the recent cases have demonstrated that the relevant assurance must be “clear enough.” For instance, in Habberfield v Habberfield [2018], where the claimant argued that her parents had assured her on numerous occasions that she would take over their family farm, the Court found out that the representations in the case were not ambiguous. The importance of representations being clear enough was well established. The Court concluded that the representations taken together in context were sufficient to convey the idea and assurance that there would be a transfer of freehold property. However, in James v James [2018], the claimant was not fortunate because the Court deemed his evidence not to be sufficiently clear to infer assurance that he would have inherited his father’s farm. In the present case, the judge made a difference between “a statement of current intentions as to future conduct” and “a promise of such conduct.” While the Thorner case was more relaxed in terms of criteria, modern case law has been clearer on when a promise can provide adequate assurance.
As opposed to the previous position where claimants could satisfy some of the elements and still succeed in their claims, modern case law illustrates that claimants must satisfy all elements for their claims to have a prospect of success. In Smyth-Tyrrell v Bowden [2018], where the claimants were tenants who tried to establish an interest in land at Cornwall, the Court dismissed such a claim arguing that there was no promise of assistance that would entitle them to the land. Similarly, the Court in Dobson v Griffey [2018] found out that there was a lack of estoppel because the claimant’s expectation did not stem from any assurance of the defendant’s conduct. Also, the judge stated that there was no true reliance because the claimant had made a commitment that was very clear. These examples illustrate that modern case law values the importance of all elements being present for the Court to give a favorable judgment to the claimant.
Based on the elements of detriment and unconscionability, recent case law has demonstrated the value of evidence in proving such matters. The success of a proprietary estoppel claim in the recent past has been based on whose version of events the judge would prefer. For instance, where a key witness is not alive, there is much scope for uncertainty. However, where the claimants prove that they relied on the assurance and it would be unconscionable to arrive at a contrary decision, the Court had found in their favor. For example, in Thompson v Thompson [2018], where the claimant invoked proprietary estoppel because he had worked full time on his father’s farm, the judge gave him a favorable judgment by relying on documentary evidence. In the recent case of Horsford v Horsford [2020], the Court once again demonstrated the importance of evidence by arguing that the claimant did not prove effectively that there was detriment after he relied on the partnerships with the respondent.
Despite increased clarity in terms of how the different elements of proprietary estoppel should be proved, there is still room for development, especially concerning the aspect of the ways in which the doctrine operates when it comes to awards. For instance, in the James case, the Court gave effect to the claimant’s expectation instead of compensating him for his detriment, whereas in Moore v Moore [2018], the award given was to compensate the detriment. As such, there is continuing ambiguity when it comes to the award that should be provided to claimants to ensure justice. Failure to have a consistent approach on the awards leaves the decision to the discretion of the judges and increases the need for greater precision and clarity on such a matter.
Essay 4: Land Registration Act
The introduction of the UK’s Land Registration Act (LRA) 2002 led to various changes in terms of the protection of pre-existing rights over land. The basic rule on the proprietary of interest is that an interest, which affects a registered estate/charge cannot be affected by the act of disposition (Legislation.gov.uk., n.d.). Additionally, the interests, which previously bound the charge in question, continue to take propriety over any interests transferred or created by the disposition. Such an approach to determining the priority of pre-existing rights over land is an improvement to the comparable approach, which is used in prioritizing the rights of unregistered land. Specifically, the comparable approach evaluates the different rights and prioritizes them based on legal rights being transacted, the physical similarity of the comparable, and economic and social influences of the localities (McDermott, Myers, & Augustinus, 2018). The LRA approach to determining the priority of pre-existing rights over land whose legal title is sold is better compared to the comparable approach because earlier interests do not take priority over later interests.
The current approach in LRA with regard to the prioritization of proprietary interests is that a disposition does not affect the priority or interest affecting it. Such a rule is better because it ensures that irrespective of whether a land is sold, the pre-existing rights remain. Such a rule is contained s 28 of LRA, which holds “ Except as provided by sections 29 and 30, the priority of an interest affecting a registered estate or charge is not affected by a disposition of the estate or charge” ( (Legislation.gov.uk., n.d.). The basic rule goes ahead to provide that there would be no difference, irrespective of whether the interest or dispositions is registered. The effect of such a rule is to establish a general position of “first in time” priority. Specifically, earlier interests would take the property over the later interests, which are transferred or created by the sale. Moreover, irrespective of whether the interests are legal or equitable, there would be no difference in terms of how they would be prioritized. S. 29 and 30 of the LRA further provide that once the disposition has been completed via registration, the interests’ priority, which affected the estate immediately before the disposition, is postponed to the interests transferred or created through the disposition (Legislation.gov.uk., n.d.). Without such protection, the interests transferred or crated via disposition would have taken priority over other interests. Such provisions improve the comparable approach, which relies on other parameters.
The comparable method is highly unfair because it bases its priority on external factors such as the market value and evidence of market transactions for similar real estate. The persons claiming an interest to be prioritized must show other cases, which have been determined in a similar manner. Similarly, the comparable method is based on a wide range of criteria. One of those is that there should be an assessment of the legal rights being transacted (McDermott, Myers, & Augustinus, 2018). Additionally, such a method requires an examination of the physical similarities of the comparable to the interests being prioritized. Moreover, other economic and social influences are taken into consideration when using the comparable method. One of the issues that arise from the use of such a technique is that they may be a lack of comparable interests and sales. If the person holding the interests does not come up with a comparable transaction, then it becomes very difficult to determine how the proprietary interests are to be prioritized. The inability to obtain appropriate comparable makes the use of the method very difficult and unfair for the person with the title to the land (McDermott, Myers, & Augustinus, 2018). Determining the appropriate method to use for prioritizing the rights using the comparable method is another issue that arises. However, with the LRA’s general rule, there is a proper process for the determination of how the rights are prioritized.
In summary, the approach contained in the LRA for the determination of priority of pre-existing rights over land whose legal title is sold is an improvement to the comparable approach taken by unregistered land and relies on how similar transactions are handled. The LRA’s general rule is that a disposition of an estate or charge does not have an effect on the priority of interests affecting such a charge. Additionally, any interest that bound the estate in question will continue to take priority over other interests, which have been created during or after disposition. Such a rule is effective in demonstrating the criteria that will be used in prioritizing such rights. However, the comparable method poses a host of problems, particularly where proprietors failed to obtain appropriate comparative transactions. As such, the LRA has greatly improved the process of prioritizing pre-existing rights over land and highly improved the procedure of comparable approach to unregistered land.
References
Dobson v Griffey [2018] EWHC 1117 (Ch).
Habberfield v Habberfield [2018] EWHC 317 (Ch).
Horsford v Horsford [2020] EWHC 584 (Ch).
James v James [2018] EWHC 43 (Ch).
Legislation.gov.uk. (n.d.). Land Registration Act 2002. https://www.legislation.gov.uk/ukpga/2002/9/contents
McDermott, M., Myers, M., & Augustinus, C. (2018). Valuation of unregistered lands: a policy guide. https://eprints.leedsbeckett.ac.uk/id/eprint/5049/1/VALUATION_OF_UNREGISTERED%20LANDS-MYERS.pdf
Moore v Moore [2018] EWCA Civ 2669.
Smyth-Tyrrell v Bowden [2018] EWHC 106 (Ch).
Thompson v Thompson [2018] EWHC 1338 (Ch).
Thorner v Major [2009] UKHL 18.