Proprietary Estoppel: when your word becomes your bond

“My word is my bond” goes the old, familiar utterance indicating that the person so uttering is reliable and will adhere to any promise or agreement they make. Sadly, it seems, these days, to be honoured more in the breach than in the observance. Promises are easy to make but equally easy to break and, generally speaking, there are no legal consequences for breaking them. Unlike contracts, promises, per se, are not enforceable. If somebody makes a promise to you and then fails to see it through, there is nothing you can do outside of social rejection.

But there is an exception to this. It is known as “proprietary estoppel”.

What is proprietary estoppel

Proprietary estoppel is an equitable doctrine of common law. Equity is a body of law that was developed in the English courts to provide a remedy for situations where the law has proved too inflexible to provide a recourse for people who believe that they have been unjustly or unfairly treated.

Proprietary estoppel is a remedy which is applicable to disputes over land and, to make a successful claim, the claimant must establish three things, which are:

• A representation or assurance was made to the claimant (in other words, a promise);
• the Claimant has relied on this promise; and
• as a result of this reliance, the claimant has suffered a detriment.

Out of these three elements, it is often the first that proves to be the most problematic for claimants. Proving that you have relied on an alleged promise and relied on it to your detriment is quite easy to establish. However, the stumbling block lies in establishing, to the satisfaction of the court, that an assurance or promise was actually given.

Some recent cases

Nearly all claims of proprietary estoppel are between family members and involve farmland. In 2018, there were no less than 12 proprietary estoppel claims in the UK High Court. However, of these 12 cases, the claimant was successful in only three of them. This underlines just how difficult it can be to persuade a court that all three elements have been satisfied.

One of the successful claims was made in the case of Haberfield .v. Haberfield. Here, the claimant, Lucy Habberfield, had worked on the family farm in Somerset from the 1980s until her father's death in 2014. When he left his entire estate to her mother, Lucy, feeling hard done by, brought a claim on the basis that her parents had assured her on numerous occasions that she would take over the farm within their lifetime. Despite some degree of ambiguity here, the judge found that taken together and in context, assurance was sufficiently clear to convey the idea that there would be a transfer of freehold property.

Contrast this with the case of James .v. James where the son of a farming family worked on the farm for most of his adult life under the impression that he would inherit that farm after his parents had passed on. Unfortunately, and following a dispute, the parents disinherited the son in their Wills. The son’s claim for proprietary estoppel failed because, while he was under the impression and assumption that he would inherit the farm, no clear promise was made or, at least, the son could adduce no clear evidence of any such promise having been made. As the judge in the case emphasised, “Saying that it is your intention to do a thing is not at all the same as promising to do it".

The distinction may appear to be a fine one, but it is crucially important to the success or failure of a claim. This recent proprietary estoppel case law has made it apparent that an assurance or promise must be clear and maybe even unambiguous to stand a chance of success. A mere implication or hint is likely to be insufficient to establish an assurance and an assumption or inference of a promise or assurance is, similarly, unlikely to meet the test that recent case law has set.

Making a proprietary estoppel claim

Although it is common for proprietary estoppel cases to share similar characteristics, the facts in each case will vary considerably. For this reason, each case must be examined on its own, individual merits. Furthermore, adducing evidence to support or defend a claim is often complicated by the fact that the party who it is claimed gave the assurance has since passed away. While documentary evidence, such as letters, emails or written memoranda, may be determinative, it is not always available. Often, especially within family circles, there are only ever verbal exchanges which are never reduced to writing and which take place over a period of many years. The success of a proprietary estoppel claim will often hinge on the witness evidence and whose version of events is preferred by the court or adjudged to be more believable.

In any event, if you believe that you may have a claim for proprietary estoppel, this is not something that you should ever attempt to litigate without solid, professional advice and assistance. Cases are rarely, if ever, ‘open and shut’ and the cost of failing in your claim can be calamitous. Hence, you need the services of a solicitor experienced in matters of equitable relief.

For further information and trusted legal advice regarding proprietary estoppel claims, get in touch with our team at Carlsons Solicitors.