Since the 2018 flurry of proprietary estoppel claims, there has been a steady stream of proprietary estoppel cases which have made the legal press, but it is fair to say, that they have certainly diminished in number.
In 2018, 12 claims were heard in the High Court but only three of those were successful and in respect of one of those three, an Appeal then followed (Habberfield v Habberfield).
The law in relation to proprietary estoppel is well established and very little has changed over the years but at times, the judiciary have helpfully repeated the elements which are needed in order for a claim to be successfully pursued. More recently, guidance has been provided about the correct way in which to analyse a claim, in that a retrospective approach must be taken. The facts must be assessed either from the point of the breakdown in relationship where it is known that the promise will be reneged on or alternatively, at the point of discovering that the promise is not honoured in the deceased’s will or will not be given effect by way of the intestacy rules if there is no will.
More often than not proprietary estoppel claims relate to farms and there has to be some science as to why that is. It may well be nothing more complicated than families being content to rely on one another when promises are made given that they trust their families implicitly. There may also be some mileage to the thought process that if the person who has made the promise to say, a son or daughter has any misgivings about that promise, it is not uncommon them to think that it will not be their problem to deal with, once they have passed away, if their will does not reflect the promise. That of course however, only leaves the problem to be dealt with at a later date by the surviving family, rather than resolving it during the promisor’s lifetime.
What do we mean by proprietary estoppel?
A proprietary estoppel claim arises when the following conditions are met:
A promise is made to the claimant;
This promise can look similar to the typical statement that, “one day, all this will be yours” which is usually in relation to a property, land or business. The promise must be clear and be more than a statement of current intention. Evidence of such a promise is desirable and is especially so, if that evidence is given by a third party who will not benefit from the claim.
The promise was believed and relied upon by the claimant; and
The Courts will be looking to see if the claimant has used the promise as a reason in making decisions. Examples include making of a life of carer move which may consist of moving to a specific property to be close to a farm or working on the same farm for an entire career with little or no pay, rather than moving to a better paid position in the industry or finding a job in another industry for which wages will be paid.
Reliance on the promise has caused the claimant to suffer detriment.
This can come in many different forms, it is likely that this will be of financial detriment but can include many types of detriment. Examples can include working long hours for little to no pay; or the inability to enter into an alternative career or job. The Courts, however, will have regard to any benefits received in assessing detriment, such as free accommodation.
Proprietary estoppel remedies
If the conditions of proprietary estoppel have been met and it would be unconscionable for the deceased to go back on the promise, the court can step in and consider making an award. The remedy is one of equity and the role of the court is to make an award which would bring about justice. In the case of Guest v Guest, which dates back to 2016 and which was subsequently appealed, practitioners were reminded that the purpose of any remedy which is awarded is to both enforce the promise which has been made and compensate for the promisee for the detriment caused by the reliance. It is imperative to have this at the forefront of your mind when pursuing a case so as to ensure that any expectations of what might be received are realistic. This, combined with an acknowledgement that the court will award the minimum equity to see that justice is done, sets the tone of the remedy which is likely to be awarded to a successful claimant. In practical terms, this means if a promise has been made in respect of “the farm”, the court will examine what that actually means ‘on the ground’, in order to arrive at its decision as to what the correct award should be.
Proprietary estoppel cases
In 2020, two notable cases were heard by the Courts: one of which was successful and the other was not. Both of the cases are interesting but for different reasons.
Firstly, Horsford v Horsford [2020] EWHC 584 (Ch): This was an unusual claim in that firstly, there was documentation in place which recorded the terms of a partnership and secondly, that the proprietary estoppel claim had been brought by way of a counterclaim. This came about because the initial claim which was pursued was not for proprietary estoppel but instead, related to the partnership. When that claim was defended, a proprietary estoppel claim was pursued alongside the defence. That claim was not successful on the basis that the documentation which was in place had dealt with any expectations the son had and he had been afforded the opportunity to secure what he deemed to be appropriate at the time, during the course of the partnership agreement negotiations. It was not therefore possible to also have a second attempt at securing relief on account of the alleged assurances, as the partnership agreement had discharged any equity which may have arisen. The claim was therefore dismissed.
Secondly, the case of Wills v Sowray [2020] EWHC 939 (Ch): The main point of different that distinguishes this claim from that which we usually see, is that the claim was pursued by two brothers who were not family members of the deceased. Ordinarily in proprietary estoppel cases we see close family members of the deceased or the person who has made the promise, making claims but in this instance the deceased was estranged from his daughter and the brothers making the claim had adopted a quasi-familial relationship with the deceased.
Unfortunately, this was a case where a will was not left by the deceased and the intestacy rules therefore applied to his estate. The implication of this was that the deceased’s estranged daughter was to benefit from his entire estate. It was on account of this that the proprietary estoppel claim was pursued and in respect of which the brothers were successful. A further point of interest is that each of the brothers had been promised a particular part of the deceased’s estate and after hearing witness evidence from each of the brothers, the court awarded remedies reflective of the limited promises which have been made to each of them.
There are numerous articles about proprietary estoppel claims available online but ultimately how the case law applies to practical examples and real-life cases is likely to be the most helpful information to a potential claimant. The take-home points of these two cases are firstly, that the court will not entertain a proprietary estoppel claim if the requisite elements cannot be satisfied and rightly so, and secondly, in circumstances where the situation that the claimant complains of has already been considered by the various parties and an agreement reached, a proprietary estoppel claim cannot act as a “second bite at the cherry”, as the equity will have already been discharged.
With regards to Wills v Sowray, that appears to fall squarely within the remit of a proprietary estoppel claim and the claimants were able to meet all of the necessary criteria. Although that was good news for the claimants, it does call into question why the matter was not capable of settlement earlier on in the proceedings and why it was necessary for the claim to be pursued to trial, by which time significant legal fees would have been incurred. We do not however, have any insight as to these matters and it may well be that settlement was explored but it was not successful. This does however, act as a prompt as to how important it is to seek advice about the merits of a claim from an early stage, in order that consideration can be given to the possibility of entering into negotiations with the aim of reaching a settlement if possible; and, if you do not do so, the fact that the court will take account of this when deciding who should pay costs, and the extent of those costs.
