In the case of Lloyds Bank Plc v Carrick [1996] Morritt LJ was wary of applying the doctrine of proprietary estoppel to aid Miss Carrick’s claim of an interest in the property, as he believed it would not be right to bestow on her a right which had already been denied to her by statute. Miss Carrick’s contract for purchase of the property was deemed to be void against the bank as a result of her failure to register her interest in the land as a class C (iv) land charge under the LCA 1972 and thus her interest cannot be binding on the bank. Although Miss Carrick was the beneficiary in absolute possession of the property, due to her payment of £19,000 from the sale of her previous house to Mr Carrick in return for the leasehold of the property, it is held on bare trust for her by Mr Carrick who is the legal owner in title of the lease. Had Miss Carrick not had a contract relating to the property she may have been in a better position as proprietary estoppel can only be applied where no contract exists. However in this case the bank have not made any representations to Miss Carrick which have caused her to act to her detriment, it was her brother-in-law who led her to believe that her interest in the property was the only interest standing after he redeemed the charge against the property, and it was Mr Carrick’s representation to the bank that only he lived at that premises which caused the problems to arise. Thus it would not, in this case, be right to confer, by means of a proprietary estoppel binding on the bank, an interest which has come into force solely through a contract which parliament has deemed to be void, and where no other interest in the property exists. Morritt LJ stated that “in [his] judgment the claim of Mrs Carrick fails on a number of grounds. First, as in the case of the constructive trust, I do not see how there is any room for the application of the principles of proprietary estoppel when at the time of the relevant expenditure there was already a bare trust arising in consequence of an enforceable contract to the same effect as the interest sought pursuant to the proprietary estoppel.” This demonstrates that it would not be right to confer on Miss Carrick a right which Parliament has already denied her, by deeming her contract against the bank to be void, as she does not have a separate interest in the property other than that related to the void contract.
In the case of Crabb v. Arun District Council [1976] Scarman LJ stated that in deciding what remedy to award in the case of a proprietary estoppel, the courts should seek to achieve “the minimum equity to do justice to the plaintiff.” This case the plaintiff had a right was related to the plaintiff’s access to his land through a gate leading from a road owned by the Council over which he had a right of way. He wanted to sell part of his land which adjoined the gate, but intended to retain the rest of it, which lay further along the road. The Council agreed informally to grant him a right of way along the further stretch of road and to permit him to gain access to his property via a new gate. Relying on this representation the plaintiff completed a sale without reserving any right of way to the existing gate, after the sale of the land was completed the Council did not grant the extended right of way, and continued to fenced the road so that the plot of land retained by the plaintiff became landlocked. The Court of Appeal held that the Council had made a representation on which the plaintiff had relied upon to his detriment which thus gave rise to an equity in the plaintiff’s favour and the plaintiff was resultantly granted a right of way over the relevant land thus satisfying the equity. This is in agreement with the words of Morritt LJ, as stated in the title, as to satisfy the equity in this case is to do what is “right” in the eyes of the law.
Under the broader approach developed from the five probanda of Willmott v Barber, three inter related elements are set out, these being representation, reliance and detriment as previously discussed. The current scope of proprietary estoppel remedies conferred by the courts require these three elements to be satisfied in order to qualify for a proprietary estoppel remedy. The first element in the broader approach is the one of representation, as can be seen in Re Basham (Dec’d) [1986] where it was stated that “where a claimant acts on the encouragement of the owner, this can be seen as representation” This case demonstrates clearly the meaning of representation as the plaintiff had spent money on the property under the belief that the deceased had promised the property to her in his will. The judge in this case, Edward Nugee QC stated that “if the belief that B will leave the whole of his estate to A is established by sufficiently cogent evidence, I see no reason in principle or in authority why the doctrine of proprietary estoppel should no apply so as to raise an equity against B in favour of A extending to the whole of B’s estate.” The deceased had, through words or conduct, led her to believe that she would have some entitlement to the land. This is also demonstrated through the case of Pascoe v Turner [1979] where the Court of Appeal ordered a fee simple owner to transfer his estate to his former partner after her reliance on his promise of receiving the house and all of its contents. After the breakdown of the relationship the husband had promised the wife that she would receive the marital house and all of its contents and on the strength of this promise she spent a considerable amount of money on improvements to the property. Based on the reliance on his promise and her expenditure, the Court decided to uphold a finding of proprietary estoppel in favour of the wife to claim the house and its contents which she had been promised. Conversely in the case of Layton v Martin [1986] Scott J held that proprietary estoppel did not apply to the promise of a financial provision as this did not relate to a particular asset or assets with which the doctrine is concerned, thus in this case proprietary estoppel could not be granted due to the fact that an asset was not concerned.
The second element required by the courts is reliance, and this is closely linked to the third element, detriment. In order for this element to be satisfied it must be demonstrated that the claimant relied upon the representation made by another person to the extent that they were influenced or induced to act in a certain way. This element can be a problematical area in trying to determine who is to prove if the reliance did occur or not. In the case of Greasley v Cooke [1980] Lord Denning stated that “once it is shown that a representation was calculated to influence the judgement of a reasonable man, the presumption is that he was so influenced.” In the case of Taylor Fashions It was suggested by Oliver J that “it is for the claimant to prove reliance” meaning that the burden of proof in order to prove reliance rests on the person contesting the estoppel as could be seen in the case of Wayling v Jones [1993] the courts usually go to some lengths in awarding the substance of the representation of entitlement originally made to the claimant.
The third essential element needed in order for proprietary estoppel to be established is detriment, in many cases detriment consists of the expenditure of money, as could can be seen from the case of Pascoe v Turner [1979] and was also demonstrated in the case of Grant v Edwards [1986] where it was stated by Lord Bridge that to use detriment to obtain proprietary estoppel the claimant must “show that he or she acted to his or her detriment or significantly altered his or her position in reliance on the [representation]” In the judgment of Gillet v Holt per Walker LJ stated that he believed Carnwath J to have taken "too narrowly financial a view of the requirement of detriment" and that the detriment need not consist of quantifiable financial detriment. These three essential elements are key to any courts decision as to whether a proprietary estoppel can be sought and whether any equitable remedy can be provided. This key process is not mentioned or hinted at in the title paragraph and in this way is not wholly representative or reflective current scope of proprietary estoppel remedies conferred by the courts.
In order for the equity to be satisfied the court must decide what relief should be given to the situation. A number of different remedies have been applied by the courts ranging from the restraint of the owner of the land from exercising existing rights; requiring the owner of the land to pay compensation to granting the claimant some interest in the land. In seeking to satisfy the equity the courts aim to achieve “the minimum equity to do justice to the plaintiff” The cases of Campbell v Griffin [2001] and Jennings v Rice [2002] were both decided through the proportionality issue whereby it was seen that there must be proportionality between the remedy and the detriment suffered. In Jennings it was established that a gardener, who had gone on to become the carer for a wealthy elderly widow under the premise that he would inherit her estate on her death, was not entitled to receive the whole of her estate which was valued at over a million pounds, when no will had been made. It was stated by the trial judge that Mr Jennings was unaware of the extent of her wealth and could not hope to receive this much. Mr Jennings claim on the house and furniture of the deceased, valued at £435,000, was also rejected by the trial judge as he believed the house to be too big for Mr Jennings to live in alone and would that a reward of such value would be excessive. Instead the judge took into account the cost of employing full time care for the elderly woman and weighed that against the cost of a suitable house for Mr Jennings and resultantly awarded Mr Jennings a sum of £200,000. In Campbell Robert Walker LJ commented that “Mr Campbell has a moral (and, as I see it, a legal) claim on the property, but it is not so compelling as to demand total satisfaction, regardless of the effect on other persons with claims on the Ascoughs’ Estate.”
It would appear that the doctrine of proprietary estoppel is a very important part of the law of this country, but like the other estoppels it does seem to have had a confusing history. Merritt LJ’s words reflect, to a certain extent, the current scope of proprietary estoppel remedies conferred by the courts. Whilst his words reflect that the courts are not willing to impose the doctrine of proprietary estoppel unless certain criteria are met it does not however demonstrate how the doctrine of proprietary estoppel aims to protect those who have acted in reliance of a false belief and also fails to demonstrate any of the possibly remedies which can be provided by the doctrine. The proprietary estoppel remedies conferred by the courts have been far from clear cut and there has been much confusion as is demonstrated in the Matharu case where Lord Roch reverted back to the Willmott v Barber “five probanda” criteria some one hundred years after its conception and after the case of Taylor Fashions had replaced the five criteria with the three element approach. The doctrine has to rely on the judges understanding of proprietary estoppel, along with their willingness to grant the estoppel and thus they must rely on what they believe is “right” based on the individual circumstances.
April Stroud, Making Sense of Land Law, (OUP, Oxford 2005) 249
Michael Brian, Private Law in Theory and Practice, (Routledge-Cavendish 2007) 189
Ramsden v Dyson and Thornton (1866) L.R 1 H.L.129
Willmott v Barber (1880) 15 Ch.D 96.
Taylor Fashions Ltd v Liverpool Victoria Trustees Co. Ltd [1982] 1 QB 133
Judith-Anne Mackenzie and Mary Philips, Textbook on Land law (11th Edn OUP, Oxford 2006)
Gillett v Holt [2001] Ch. 210
Lloyds Bank plc v. Carrick [1996] 4 All ER
Crabb v. Arun District Council [1976] Ch. 179
Scarman LJ (n 11) para. 198
Re Basham (Dec’d) [1986] 1 WLR 1498
Mr. Edward Nugee Q.C. (n 15)
Pascoe v Turner [1979] WLR 431
Layton v Martin [1986] 2 FLR 227
Greasley v Cooke [1980] 1 WLR 1306
Wayling v Jones (1995) 69 P. & C.R. 170
Pascoe v Turner [1979] WLR 431
Grant v Edwards [1986] Ch 638
Campbell v Griffin [2001] WL 676695
Jennings v Rice [2002] WL 45443
Robert Walker LJ (n 33) para. 34