InsightsInsight - Property and Conveyancing - POSTED: May 23 2016
The Promised Land
Has someone promised to leave you some land in their will? To what extent have you put yourself out – suffered a detriment – in reliance on that promise? How would you be affected if that promise were not fulfilled?
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Proprietary estoppel is an equitable remedy (meaning the legal right to claim is not found in statute law) which exists to prevent the legal owner of property from asserting their strict legal rights in respect of the property when it would be inequitable to allow them to do so.
The usual scenario would be that the legal owner in that context would be a third party (not the giver of the promise) who has become or will potentially become the owner of the land in question as a result of the promisor’s death.
A typical example of when proprietary estoppel may arise is both parents persuading a son or daughter to devote their life to working on the farm, and then looking after the ageing parents, on the basis that the land and farming enterprise will pass to the child upon their deaths. For a number of reasons this “promise” may not be carried out, for example, the parents did not make valid Wills leaving the child not sufficiently assisted by the Intestacy Rules, the parents changed their minds and never communicated this to the child, the surviving spouse remarries and the new spouse inherits instead.
The disappointed child or claimant (the party claiming the entitlement could be an unrelated party, originally an employee say, who the landowner seemed to “adopt” as his heir and successor) will need to establish:
- A representation or assurance that the legal owner said that the land or property would be theirs once they had died
- They relied upon that assurance to their detriment
- An unconscionable denial of their right.
The court will look at the factual matrix in the round. An active representation must relate to a right in relation to land. The property over which the right is alleged to have been acquired must be clearly identified by the assurance. A promise of “financial security” will not be clear enough, nor would a promise to a child that he would always have “a roof over his head”.
The detriment suffered by the claimant must be substantial. For example, the party seeking the relief would not succeed on this requirement solely by undertaking basic domestic tasks and supervising some maintenance and renovation work carried out to the property. Even when the assurance and the resulting detriment are established, the legal owner’s behaviour in denying the claimant’s right must still be regarded as “unconscionable”.
If the party wronged by the events satisfies a court on the three requirements he still has to make a case that the remedy he is seeking is proportionate to the detriment suffered. The court has a complete discretion as to how to compensate the claimant. Typically even though the claimant had evidently been promised the entire farming estate he might only find that a court awards him a farmhouse, a part of the land and then some cash to compensate him for not getting all the land. The rest of the estate may still go elsewhere even though he was promised everything.
This is a complicated area of law as the “evidence” is of the historic assurance, usually oral and possibly not at all recent. It’s always best to seek legal advice from a solicitor who is an expert in contesting wills to help. If you believe you have a case of proprietary estoppel please call our specialist team
This article was previously published with the May 2016 issue of South East Farmer
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