Proprietary estoppel – Assurance – Respondent working without pay on deceased’s farm on understanding he would inherit – Deceased dying intestate – Whether indirect statements by deceased sufficient assurance to found proprietary estoppel – Whether subject of assurance sufficiently identified where extent of farm varying over time – Appeal allowed
Since 1976, the appellant had worked without pay on a farm owned by the deceased, his father’s cousin. In 1997, the deceased made a will under which he left his residuary estate to the appellant. He later cancelled that will in order to exclude another legatee, but he failed to make a new will and died intestate in 2005. The appellant brought proceedings against the respondents, as personal representatives of the deceased, claiming to be entitled to the farm under the doctrine of proprietary estoppel. Allowing the claim, the deputy judge found that the deceased had represented, by various indirect remarks made from 1990 onwards, that the appellant was to inherit and that the appellant had relied upon those representations to his detriment.
An appeal by the respondents was allowed on the ground that the oblique assurances that the deceased had given to the appellant in 1990, and on subsequent occasions, were insufficient to found a proprietary estoppel since they were not clear and unequivocal and that there was nothing to show that the deceased had intended them to be relied upon as a promise, rather than being simply statements of his present intention: see [2008] EWCA Civ 732; [2008] PLSCS 196.
The appellant appealed, contending that the “clear and unequivocal” test did not apply to proprietary estoppel. The respondents contended that: (i) the meaning of the words used by the deceased was a question of law, not of fact, and it had not been reasonable for the appellant to understand them as he had or to rely upon that understanding; and (ii) even if the other elements of proprietary estoppel were made out, the land to which the deceased’s assurances related was not identified with sufficient certainty because the extent of the farm had changed over the years.
Held: The appeal was allowed.
(1) The doctrine of proprietary estoppel was based upon three main elements: (i) a representation or assurance made to the claimant; (ii) reliance upon it by the claimant; and (iii) detriment to the claimant in consequence of his reasonable reliance. There was authority for the view that the “clear and unequivocal” test did not apply to proprietary estoppel: Jones v Watkins unreported 26 November 1987 applied. The relevant assurance had only to be sufficiently clear, and clarity would be hugely dependent upon context. In certain cases, the landowner’s conduct in standing by in silence and permitting the claimant to act to his detriment might serve as the element of assurance. Although the meaning of spoken words was a question of law, as with written documents, there was a degree of unreality in the distinction given that a judge’s conclusion as to the meaning of the spoken words would be inextricably entangled with his factual findings regarding the surrounding circumstances: Walton v Walton unreported 14 April 1994 considered. In the instant case, the deputy judge had listened carefully to the evidence and had been sensitive to the unusual circumstances of the case. The Court of Appeal had given insufficient weight to the advantage that the deputy judge had had in seeing and hearing the witnesses. It had concentrated too much on the 1990 assurance, which, although it marked the transition from hope to expectation, did not stand alone and formed part of a continuing pattern of conduct by the deceased for the remaining 15 years of his life. The deputy judge had been entitled to find that the deceased’s assurances, objectively assessed, were intended to be taken seriously and to be relied upon. There was no sufficient reason for the Court of Appeal to reverse his careful findings and conclusion.
(2) It was a necessary element of proprietary estoppel that the assurances given to the claimant, expressly, impliedly or tacitly by standing by, should relate to identified property owned, or perhaps about to be owned, by the defendant. Whereas promissory estoppel had to be based upon an existing legal relationship, proprietary estoppel required no such relationship; instead, it was the relationship to identified land of the defendant that enabled it to be used as a sword and not merely as a shield. In the instant case, the property to which the assurance related was sufficiently identified. The appellant had known that the extent of the farm was liable to fluctuate as development opportunities arose and tenancies came and went. Both the deceased and the appellant had understood the assurance to relate to the farm, whatever that might comprise at the time of the deceased’s death: Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55; [2008] 3 EGLR 31; [2008] 35 EG 142; [2008] 36 EG 142 considered.
John McDonnell QC and Michael Jefferis (instructed by Stephen Gisby & Co, of Bristol) appeared for the appellant; Andrew Simmonds QC and Penelope Reed (instructed by Gould & Swayne, of Highbridge) appeared for the respondents.
Sally Dobson, barrister
