equitable interest estate and proprietary estoppel

ESTATE CONTRACT

ESTATE CONTRACT

An estate contract is a contract to convey or create a legal estate is an estate contract.“Any contract by an estate owner or by a person entitled at the date of the contract to have a legal estate conveyed to him to convey or create a legal estate, including a contract conferring either expressly or by statutory implication a valid option of purchase, a right of pre-emption or any other like right.”.1

1Land Charges Act, 1925 (U.K.), s.2

ESTATE CONTRACTContract for lease or sale as good as lease or sale

Walsh v. Lonsdale (1882) Ch.D. 9 .

ESTATE CONTRACT

“There are not two estates as there were formerly, one estate at common law by reason of the payment of the rent from year to year and an estate in equity under the agreement. There is only one court, and the equity rules prevail in it”.(1882) 21 Ch. 14 -15, per Jessel M.R.

ESTATE CONTRACT “Accordingly, in this case there is an

estate at common law by reason of payment of rent from month to month and an estate in equity under the agreement. But since the fusion of law and equity, as Sir George Jessel, M.R., said in Walsh v. Lonsdale - these two estates cannot subsist together. There is only one court and the equity rules prevail in it”: in Metcalfe & Edghill (1963), 5 W.I.R. 422, 423, per Hytali J.

ESTATE CONTRACTMetcalfe & Edghill (1963), 5 W.I.R. 422

ESTATE CONTRACTLandlord and Tenant Ordinance, Cap. 27, s. 3, which provides:“No lease for a term exceeding three years or surrender of any land shall be valid as a lease or surrender, unless the same shall be made by deed duly registered; but any agreement in writing to let or surrender any land shall be valid and take effect as an agreement to execute a lease or surrender, and the person who shall be in possession of the land in pursuance of any agreement to let may, from payment of rent or other circumstances, be construed to be a tenant from year to year.”.

ESTATE CONTRACT

“(s)ince the agreement in this case must be construed as one to execute a lease and is one in respect of which the court will decree specific performance, it follows that the tenant holds under the agreement in the same way as if a lease was granted”..:per Haytali, J., in Metcalfe & Eddy v. Edghill, at p. 423.

ESTATE CONTRACTMaitland pointed out that “between the contracting parties an agreement for a lease may be as good as a lease.”

ESTATE CONTRACT(1) Dependent on availability of specific performance

ESTATE CONTRACTWiltshire v. Cain (1959) 2 W.I.R. 12

ESTATE CONTRACTWarmington and Another v. Miller[1973) 2 All E.R. 372

ESTATE CONTRACTWarmington and Another v. Miller[1973) 2 All E.R. 372“To order him specifically to perform the contract by granting an underlease and so allowing the plaintiffs to retain possession would be to order him to do something he cannot do or, if he did it, would expose him to forfeiture..”:

Warmington and Another v. Miller[1973) 2 All E.R. 372, 377, per Stamp L.J.

ESTATE CONTRACTWarmington and Another v. Miller[1973) 2 All E.R. 372, 377, per Stamp L.J.The equitable interests which the intended lessee has under an agreement for a lease do not exist in vacuo, but arise because the lessee has an equitable right to specific performance of the agreement. In such a situation, that which is agreed to be done and ought to be done is treated as having been done and carries with it in equity the attendant rights. But the intended lessees's equitable rights do not in general arise when that which is agreed to be done would not be ordered to be done. ibid at 377, per Stamp L.J.

ESTATE CONTRACT(2) Third parties

Bona fide purchaser

ESTATE CONTRACT“If the purchaser is potentially entitled to equitable remedy of specific performance, he obtains an immediate equitable interest in the property contracted to be sold: for he is, or soon will be, in a position to call for it specifically”: Megarry & Wade, Law of Real Property, 4th ed. at p. 602.

ESTATE CONTRACTTypes of Estate Contracts

(1) Contract to grant an easement or profit a prendre

(2) Contract to create a legal mortgage

PROPRIETARY ESTOPPEL (ACQUIESCENCE)

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Dilwyn v. Llewellyn (1862) 45 E.R. 1285, at p. 1286.“If A puts D into possession of a piece of land and tells him, ‘I give it to you that you may build a house on it’, and D on the strength of that promise, with the knowledge of A, expends a large sum of money in building a house accordingly I cannot doubt that the donee acquires a right from the subsequent transaction to call on the donor to perform that contract and complete the imperfect donation that was made”.

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Ramsden v. Dyson:“If a stranger begins to build on my land supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a court of Equity will not allow me to assert my title to the land on which he has expended money on the supposition that the land was his own”: Ramsden v. Dyson:(1866) L.R. 1 H.L. 129, at 140-141, per Cranworth, L.C.

PROPRIETARY ESTOPPEL (ACQUIESCENCE)“[i]t requires a very strong evidence to induce the court of equity to deprive a man of his legal right. ... It has been said that the acquiescence which will deprive a man of his legal rights must amount to fraud, and in my view that is an abbreviated statement of a very true proposition. A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights”:Willmott v. Barber (1880) L.R. 15 Ch. D. 96, 106, per Fry, J.

PROPRIETARY ESTOPPEL (ACQUIESCENCE)By this doctrine the courts of equity

(a) have created an inroad into the equitable maxim, “equity does not aid a volunteer”; (b) circumvented the requirements of the Statute of Frauds, to perfect an imperfect gift by awarding specific performance where there is no consideration and/or written evidence to buttress a claim for an interest in land;(c) side-stepped the statutory requirements for testamentary disposition; and (d) also departed from the general rule that estoppel can only operate as a shield but not as a sword.

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Dilwyn v. Llewelyn.1 With the encouragement and knowledge of his father, the son spent £14,000 to build a house on the father's land. The father signed an unsealed memo purporting to convey the land to the son. But in the father's will it was discovered that all his real estate was devised on trusts for others. The son succeeded in getting a conveyance of the fee simple interest.(1862) 45 E.R. 1285.

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Conditions1. In the first place the plaintiff must have made a mistake as to his legal rights.2. The plaintiff must have expended some money or must have done some act (not necessarily upon the defendant's land) or suffered some detriment on the faith of his mistaken belief.3 The defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it, he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights.4. The defendant, the possessor of the legal right, must know of the plaintiff's mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights.5. The defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in other acts which he has done, either directly or by abstaining from asserting his legal right: Willmott v. Barber (1880) 15 Ch. D. 96, per Fry J.

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Conditions1. In the first place the plaintiff must have made a mistake as to his legal rights.

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Conditions

2. The plaintiff must have expended some money or must have done some act (not necessarily upon the defendant's land) or suffered some detriment on the faith of his mistaken belief.

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Conditions3 The defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it, he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights.

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Conditions4. The defendant, the possessor of the legal right, must know of the plaintiff's mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights.

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Conditions5. The defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in other acts which he has done, either directly or by abstaining from asserting his legal right: Willmott v. Barber (1880) 15 Ch. D. 96, per Fry J..

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Conditions1. The plaintiff must have made a mistake as to his legal rights.It should be “case which supposes a total absence of title on one side, implying therefore, that the act must be done of necessity under the influence of mistake; and undoubtedly it may be expected, that the party should advertise to the other, that he is acting under a mistake. But I do not know any case, in which a lessee,....making any improvement upon the estate in his possession, though with the complete knowledge of the landlord, has been held entitled as against the landlord to have his lease prolonged, until he shall obtain reimbursement for the improvements he has made; for [he] has title, of which he knows the duration. He is not under a mistake as to the nature of his title”: Pilling v. Armatage (1806) 33 E.R. 31, 33

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Conditions1. The plaintiff must have made a mistake as to his legal rights.

Derrick v. Mohammed (1960) 2 W.I.R. 352


Knowledge – constructive knowledge – not sufficient

Did he have actual knowledge or should he have known as a reasonable man?

Willmott v. Barber (1880) 15 Ch. D. 96Constructive knowledge is not enough. He should have actually known that the property did not belong to him or that he would not have had the interest he claims he had.


Knowledge – constructive knowledge – sufficient

Rennie v. Young (1858) 44 E.R. 939.



Reliance detriment/ change of position to the prejudice of the developer/representee

Jones v. Stones [1999] 1 W.L.R. 1739.




Greasley v. Cooke[1980] 1 W.L.R. 1306, 1313, per Dunn, L.J.




“There is no doubt that for proprietary estoppel to arise the person claiming it must have incurred expenditure or otherwise have prejudiced himself or acted to his detriment”:Greasley v. Cooke[1980] 1 W.L.R. 1306, 1313, per Dunn, L.J.




Skinner v. Daniel, Reeves et al (1981) 16 Barb. L.R. 21.


3 The defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it, he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights.

Knowledge of the owner / representor of his right and awareness of the mistaken belief of the developer / representee(The old rule) Derrick v. Mohammed (1960) 2 W.I.R. 353.



Knowledge of the owner / representor of his right and awareness of the mistaken belief of the developer / representee(The old rule)Barclays Bank Plc v. Zaroovabli [1997] Ch. 321



Knowledge of the owner / representor of his right and awareness of the mistaken belief of the developer / representee(The old rule)“If (contrary to my view) the provisions of the Land Registration Act, 1925, enable the bank to enforce its registered charge free from the rights of Mrs. Pourdanay under her statutory tenancy, the failure of the bank to inform Mrs. Pourdanay of the precariousness of her position is not, in my opinion, sufficient to justify describing as unconscionable its decision so to enforce its charge. The bank did not accept Mrs. Pourdanay as its tenant. She incurred the expenditure on which she relies with no encouragement from the bank. The bank did not know she was incurring this expenditure.” Barclays Bank Plc v. Zaroovabli [1997] Ch. 321



Knowledge of the owner / representor of his right and awareness of the mistaken belief of the developer / representee(The NEW rule) Taylor Fashions Ltd. v. Liverpool Victoria Trustees Co. Ltd.129 129[1982] 2 W.L.R. 576

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Conditions 3 The defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it, he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights.

Knowledge of the owner / representor of his right and awareness of the mistaken belief of the developer / representee

(The NEW rule – is it unconscionable to take advantage of the shared mistaken belief - ....” Taylor Fashions Ltd test)

“is simply whether, in all the circumstances of the case, it was unconscionable for the defendants to seek to take advantage of the mistake, which, at the material time, everybody shared....” Taylor Fashions Ltd. v. Liverpool Victoria Trustees Co. Ltd. [1982] 2 W.L.R. 576



(The NEW rule – is it unconscionable to take advantage of the shared mistaken belief - Taylor Fashions Ltd test)

Amalgamated Investment and Property Co. Ltd. (in liquidation) v. Texas Commerce International Bank Ltd [1981] 3 All E.R. 577Re Basham 2[1986] 1 W.L.R. 1498



(The NEW rule – is it unconscionable to take advantage of the shared mistaken belief)The question is whether “in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment”: Re Basham [1986] 1 W.L.R. 1498



(The NEW rule – is it unconscionable to take advantage of the shared mistaken belief - Taylor Fashions Ltd test)

Hackett v. Inverugie Investment Ltd 1(1982) 32 W.I.R. 3


Knowledge of the owner / representor of his right and awareness of the mistaken belief of the developer / representee(The NEW rule – is it unconscionable to take advantage of the shared mistaken belief - Taylor Fashions Ltd test)

“Alliance must have realised that no-one would lay out the sum of $300,000 unless he thought he was getting a valid lease. It must therefore have been obvious to it that Hackett was under a mistaken belief that he could obtain a valid lease without Alliance's written consent.Alliance stood by and allowed the existing method of financing the construction of the buildings to continue. At no time did Alliance tell Myra not to grant any more leases. And, what is more, Alliance assumed that that method of financing construction would continue (see letter of 20th May 1971 from Millican to Higgs). So far as Hackett was concerned, once Alliance realised his mistake, Alliance was under a duty to disabuse Hackett and prevent him expending his money on a valid lease. For Alliance to stand by, to allow Hackett to lay out his money, and then take the benefit of that expenditure would in my opinion amount to fraud in a court of equity”: Hackett v. Inverugie Investment Ltd 1(1982) 32 W.I.R. 3



“If one applies the test adumbrated in a number of recent authorities, i.e., in the circumstances has it become unconscionable for the possessor of the legal right to rely on his legal right, I think there can be but one answer in this case and that is, that Alliance is estopped from alleging that it w as not bound by the lease granted by Myra to Hackett”:(1982)32 W.I.R. 3, 42, per Da Costa J.A.



Hackett v. Inverugie Investment Ltd (1982)32 W.I.R. 3(a) On questions of fact – the trial court decision should have prevailed(b) Taylor Fashions is distinguishable – as it involved positive encouragement or mutual (common) mistake(c) Hackett v Inverugie involved unilateral mistake and passive encouragement – calling for the application of all the five conditions of proprietary estoppel



Megarry and Wade rightly put it,“It is unlikely that O’s conduct will be regarded as unconscionable unless he was aware of (i) his proprietary rights;(ii) C’s expenditure or other detrimental acts; and (iii) C’s mistaken belief that he had or would acquire an interest in or over O’s land.”.4

For “You cannot encourage a belief of which you do not have any knowledge”: Brinnand v. Ewens (1987) 19 H.L.R. 415, 418, per Nurse L.J.



Secondly, if there is genuine ignorance on the part of the owner/representor and a mistaken belief on the part of the developer/representee, the equities are equal. It would be fair to demand a greater deal of diligence on the part of developer/representee than the owner/representor, who should not be made to bear the consequences of the mistake of the developer/representee”: Commonwealth Caribbean Land Law, p.52

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Conditions The defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in other acts which he has done, either directly or by abstaining from asserting his legal right.

Representation / encouragement

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Conditions The defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in other acts which he has done, either directly or by abstaining from asserting his legal right.

Representation / encouragement

Encouragement or representation by silence of the owner while his property is being developed

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Conditions The defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in other acts which he has done, either directly or by abstaining from asserting his legal right.Representation / encouragement


"the circumstance of looking on is in many cases as strong as using terms of encouragement”:Dann v. Spurrier (1802) 32 E.R. 94, 95, per Lord Eldon



McClurg v. Rogers et al (1976) 11 Barb. L.R. 35Clarke. v. Kellarie (1970) 16 W.I.R. 40.



McClurg v. Rogers et al (1976) 11 Barb. L.R. 35



Clarke. v. Kellarie (1970) 16 W.I.R. 40.

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Effect of the Doctrine


“maximum extent of the equity”


“minimum equity to do justice”


“look at the circumstances in each to decide in what way the equity can be satisfied”.


“a greater interest in law than was within their induced representation”: Watson v. Goldsbrough (1986) 1 E.G.LR. 265, 267

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Effect of the Doctrine1. Remedies(a) Confer a title(b) Injunction(c) Charge for expenditure(d) Specific performance

2. Estoppel Creating an Interest in Land

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Effect of the Doctrine1. Remedies

(a) Confer a title(i) grant of fee simple

Dilwyn v. Llewellyn(1862) 45 E.R. 1285

(ii) grant of a leasehold interests Stiles v. Cowper (1748) 26 E.R. 1198

(iii) a licence of an indefinite term: Plimmer v. Wellington Corp.(1844) 9 App.

Cas 699Clarke v. Kellarie (1970) 16 W.I.R. 401 (a declaration allowing the defendant in to occupy the land so long as the plaintiff's

lease subsisted.

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Effect of the Doctrine1. Remedies(b) Injunction

An order restraining the owner/representor from interfering with rights of possession acquired by the developer/representee

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Effect of the Doctrine1. Remedies(c) Charge for expenditure

Virginia Moncur v. Margaret Palacious:

Supreme Court of the Bahamas, Equity side, No. 1163/1985

(unreported).

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Effect of the Doctrine1. Remedies(d) Specific performance

Duke of Beaufort v, Patrick (1853) 51 E.R. 954.


2. Estoppel Creating an Interest in Land

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Effect of the Doctrine2. Estoppel Creating an Interest in LandThe “effect of the estoppel on the true owner may be that his own title to the property, be it land or goods, has been held to be limited or extinguished or new rights and interests have been created therein....”:Crabb v. Arun D.C.[1974] 3 All E.R. 865, 876 (B), per Lord Denning, M.R..

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Effect of the Doctrine2. Estoppel Creating an Interest in

LandAn interest acquired under the doctrine of proprietary estoppel binds third parties:Inwards v. Baker [1965] 1 All E.R. 446

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Effect of the Doctrine2. Estoppel Creating an Interest in Land

An interest acquired under the doctrine of proprietary estoppel binds third parties: “any purchaser who took with notice would clearly be bound by the equity. So here, too, the present plaintiffs, the successors in title of the father, are clearly themselves bound by this equity”Inwards v. Baker [1965] [1965] 1 All ER 446, 449, per Lord Denning

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Effect of the Doctrine2. Estoppel Creating an Interest in Land

An interest acquired under the doctrine of proprietary estoppel binds third parties:E.R. Ives Investment Ltd. v. High [1967] All E.R. 504.

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Effect of the Doctrine2. Estoppel Creating an Interest in LandAn interest acquired under the doctrine of proprietary estoppel binds third parties:

“The right arises out of the expense incurred by the defendant in building his garage, as it is now, with access only over the yard: and the Wrights standing by and acquiescing in it, knowing that he believed he had a right of way over the yard. By so doing the Wrights created in the defendant’s mind a reasonable expectation that his access over the yard would not be disturbed”: E.R. Ives Investment Ltd. v. High [1967] 1 All ER 504, 507-508, Lord Denning [continue]

PROPRIETARY ESTOPPEL (ACQUIESCENCE)Effect of the Doctrine2. Estoppel Creating an Interest in LandAn interest acquired under the doctrine of proprietary estoppel binds third parties:

“That gives rise to an ‘equity arising out of acquiescence’. It is available not only against the Wrights but also their successors in title. The court will not allow that expectation to be defeated when it would be inequitable so to do. It is for the court in each case to decide in what way the equity can be satisfied ” E.R. Ives Investment Ltd. v. High [1967] 1 All ER 504, 507-508, Lord Denning

“an essential distinction between a mortgage and a vendor's lien: the former is a security upon real or personal property for the payment of a debt, or for the performance of an engagement, created by contract between the parties; whereas the latter is a charge arising by operation of law. No doubt a vendor's lien is incident to a contract between the parties, but the contract to which it is incident is not a contract constituting the relationship of mortgagor and mortgagee, but a contract constituting the relationship of vendor and purchaser”: Re Beirnstein [1925] Ch. 12, 17-18, per Lawrence J.

Mackreth v. Symmons (1808) 34 E.R. 1155

Winter v. Anson (1827) 38 E.R. 509

Frail v. Ellis (1852) 51 E.R. 814

Acknowledgment of receipt for the full purchase price The form of the conveyance or any such other document evidencing acknowledgement of receipt of the full purchase price is not conclusive. The parties have the right to show what the real nature of the transaction was. It was so held in the case of Frail v. Ellis1, in which the plaintiff Frail sold and conveyed a property to the defendant for a consideration of, as expressed on the face of the conveyance, “£150 then paid, and ... £300 to be paid at three months”, thus making £450, “the receipt whereof he did thereby respectively acknowledge, and that the same were in full satisfaction for the absolute purchase”. Levy, the solicitor for both parties, acted for Ellis to whom the property was subsequently mortgaged for £350. 1(1852) 51 E.R. 814

The bill for the unpaid balance of £300 was not paid when it was due. When the property was advertised for sale, the plaintiff Frail discovered the mortgage. The issue was whether the plaintiff having been paid £150 in money and accepted a bill of exchange for ₤300, could still enforce a lien on the property. The court found that the bill of exchange for ₤300 was not accepted by the plaintiff in substitution for the balance of the purchase-money, but a security. The plaintiff did not therefore lose his lien, which could be enforced against the property.“On the first point, it is contended that the form of the deed is conclusive, and that the conveyance is expressed to have been made in consideration of £150 and the bill for £300, and that the recipt indorsed is to the same effect. I am of opinion that the form of the deed does not conclude the parties. I do not think it necessary to go into the authorities, for I am of opinion that, in accordance with all the cases, it is possible for the parties to shew what the real nature of the contract was”.2

2Frail v. Ellis (1852) 51 E.R. 814

On the first point, it is contended that the form of the deed is conclusive, and that the conveyance is expressed to have been made in consideration of £150 and the bill for £300, and that the recipt indorsed is to the same effect. I am of opinion that the form of the deed does not conclude the parties. I do not think it necessary to go into the authorities, for I am of opinion that, in accordance with all the cases, it is possible for the parties to shew what the real nature of the contract was.1

1Frail v. Ellis (1852) 51 E.R. 814

RemediesAn equitable lien does not vest a party to a right of possession, but permits him to proceed in court for a judicial decree to sell the property to realise the debt due to him.

LIEN1 According to Romilly M.R. in Attorney General v. Sittingbourne and Sheerness Railway: “It is true that a purchaser has a lien for his unpaid purchase-money, but he cannot, if he require the aid of the Court, act differently from a mortgagee or any other person claiming a lien; he must institute a suit, and get that lien declared against all the persons interested in the estate, or at least all those who are subsequent to him in date, and who are foreclosed by his decree.”

LIEN

1Niblock v. Apthorp (1975) 26 W.I.R. 1.2(1866) L.R. 1 Eq. 636, 639

equitable interest estate and proprietary estoppel

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