Land Law Essay

Proprietary e kickpel protects a person who has a non contractual agreement over grime notwithstanding they have fuck offed a injustice imputable to them playing upon a reliance base on an boldness make by the claimant. There has been much discussion in recent baptistry uprightness and academic commentaries as to the elements which make up the nature of trademarked estoppel. Unconscionaibility is a major focalise for discussion in deciding whether it should be tempered as a illuminate element or if it is consorted into the tether briny elements.This essay will consider and discuss the nature of trademarked estoppel and the two understands on unconscionaibility whether on that point will al flairs be unconscionaibility if thither has been a non-performance of an assumption causing the claimant to suffer a blemish found on the pledge which they relied on or if unconscionaibility should be proven as a separate element in each case.The starting point of trademarked estoppel was in the case of Willmott v Barber (1880) where five criteria were set down, which had to be satisfied by a person claiming proprietary estoppel and the courts utilise these criteria to a wide range of proprietary estoppel claims.However these criteria were criticised for macrocosm excessively strict tether to the broader approach established in Taylor Fashions Ltd v Liverpool Trustees Co Ltd (1982) where Oliver J stated whether, in particular individual mise en scenes, it would be outrageous for a party to be permitted to deny that which, knowingly or unknowingly, he has allowed or encouraged an new(prenominal) to assume to his detriment. Although the approach became broader there still remained essential elements which moldiness be satisfied for a fortunate claim.The more modern approach towards proprietary estoppel is based on leash main elements, firstly an authority of overthrow or post be made to the claimant, the claimant relying on the assurance whi ch has been made and finally the claimant suffering a detriment as a consequence of relying on the assurance made. The main point for discussion and questioning in proprietary estoppel is the role of unconscionaibility and whether it should be tough as a fourth element which too must be satisfied in order for a claim to be successful or if unconscionaibility is interlinked with the other elements of proprietary estoppel.Proprietary estoppel acts as a sword and a shield and can be designd in one of two ways. Put corroboratively, the reason why it is possible to use proprietary estoppel to generate a property interest in a favour of a claimant despite the absence of the normal formality rules is because of the unavoidableness to prevent unconscionable necessitate. This is why unconscionaibility is the imbedation of estoppel. It is the antidote to the otherwise ignominious absence of formality. This is one of the views on unconscionaibility which suggest that unconscionaibility is at the heart of proprietary estoppel rather than a separate element of it.The first element of proprietary estoppel is encouragement where the claimants belief that they would have some rights over buck or property has been encouraged by the promisor and this could have been through actively or passively. Active encouragement is seen in ordinary lookout cases where the claimant has been actively persuaded through an place representation as in inward v Baker (1965) where a son was actively encouraged to throw on his fathers land in the mindset that it would be his in the future. super acid expectation cases are dealt with more generously by judges, compared to passive cases, as the promisor has lead the claimant to have a reasonable belief that they would grasp the land therefore leading them to rely upon that assurance causing them to suffer a detriment. It would be seen as unconscionable in a common expectation case for the claimant to have been encouraged to suffer a d etriment for the promisor to past go back on their assurance, meaning that unconscionaibility is right away a running theme in the elements as it can be seen at the first instance and should therefore non be treated as a separate element.The encouragement could alike be passive, for physical exertion a land owner standing by watching soulfulness build on their land knowing that somebody is acting downstairs a mistaken belief. The nature of a passive expectation made to the claimant can be distinguished in commercial and interior(prenominal) cases as was seen in Cobbe v Yeomans Row Management Ltd (2008) where the domicile of Lords established that the expectation of an interest in land should non be vague in a commercial situation.The expectation should be for a certain interest in land for proprietary estoppel purposes which was non the expectation held by Cobbe therefore the expectation was held to be too vague. Lord Scott stated Unconscionaibility in my opinion plays a very important part in the doctrine of equitable estoppel, in unifying and confirming, as it were, the other elements. If the other elements appear to be present but the result does not appal the conscience of the court, the analysis needs to be looked at again. This statement shows how case law endorses the unconscionaibility approach as being interlinked with the other elements of proprietary estoppel that if all of the elements are not satisfied there can not be a claim for proprietary estoppel as is the case here. In domestic (family) cases, the nature of the expectation doesnt have to be so specific as long as there is an interest or right in land that would amount to a significant expectation. The assurance made must be clear enough so that claimant is found to have relied upon.Lord Walker stated in the case of Thorner v Major (2009) There is no definition of proprietary estoppel that is both well-rounded and uncontroversialthe doctrine is based on three main elements, alth ough they express them in slightly different terms a representation or assurance made to the claimant reliance on it by the claimant reliance on it by the claimant and detriment to the claimant in consequence of his (reasonable) reliance One view on unconscionaibility stated that Once there has been detrimental reliance on an assurance, it is unconscionable to take back it therefore if it cannot be proven that an assurance existed then it wont be unconscionable for it to be withdrawn display that unconscionaibility is a running theme within proprietary estoppel rather than a separate element. One difficulty in deciding these kinds of cases is that although an assurance has been made to the claimant in the way of a will, the claimant is also aware that the will could be revoked at any time therefore the question to be asked is whether their reliance based on the assurance was adequate. The second element of proprietary estoppel is reliance where the claimant must have been encourag ed to rely on the promisors assurance which has caused them to suffer a detrimental loss by changing their define and there must be a sufficient causal link between this in that the encouragement must have caused the detriment suffered. reliance can not be treated as an element unaccompanied it has to have caused a qualify in the position of the claimant, if no detriment has been suffered then there can be no claim for proprietary estoppel. There are several ways in which the courts can show how the claimant was influenced to rely on the encouragement firstly is by clearly showing that there has been a change in position by the claimants positive act, for example the claimant spending money on the land or qualification property improvements based on the assurance that it will become theirs, causing them to suffer a detriment.Where the claimant has acted in a way different to what he would had the assurance not been made nd relied on this can also show how the encouragement has i nfluenced the reliance causing a detriment as in Jones (AE) v Jones (FW) (1977) where a son acted on the assurance of property becoming his left his job and house to live with his father, however had the assurance not had been made he would not have done this leading to the detriment that he suffered. There can be a premiss made that the claimant relied on the assurances given to them based on there conduct and in these cases the burden is put onto the other party to prove that the claimant did not rely on the promises made and this is hard to prove as it is a subjective matter based on the claimants state of mind. This was the case in Greasley v Cooke (1980) where the defendant did not have to prove that she relied on assurances as it was presumed from her conduct.The final element of proprietary estoppel is that the person must have suffered a detriment due to the reliance on the assurance which has caused a change in their position. The detriment suffered can be in many forms no t just that of financial detriment although it must be substantial in making it unconscionable for the land owner to withdraw their promise of land to the claimant. Walton v Walton (1994) shows where financial detriment wasnt the main detriment suffered, the claimant had suffered a personal detriment as he had spent years of his sprightliness relying on the assurance made to him that the farm would one day be his, and he couldnt get those years of his life back. Public form _or_ system of government in formality of contracts plays a major part in the deciding claims for proprietary estoppel.Section 2 Law of Property (Miscellaneous Previsions) Act 1989 states that (1) A contract for the sale or other disposition of an interest in land can only be made in authorship and only by incorporating all the terms which the parties have expressly concord in one document, or where contracts are exchanged, in each. This act dough informalities in land transfers where a claimant would be exp ected to sign up a contract but hasnt done so, as in Cobbe, and this is where they would turn to proprietary estoppel to try and show that the detriment which they have suffered is due to the unconsionability of the removal of the assurance which they had originally relied on. Proprietary estoppel acts as a way around formalities and a form of protection for those who have not followed contractual formalities in the transfer of land.Why should people be able to use proprietary estoppel to make a claim for land where they have followed formalities and drawn up a contract as in Cobbe, it can be seen that it is not unconscionable for the promisor to withdraw as there is no contractual agreement. However in domestic cases where there wouldnt always be an expectation of a well-grounded contract to be drawn up proprietary estoppel can stop unfair decisions being made due to the lack of formalities where it would be unconscionable for the defendant to suffer a detriment due to an assuranc e on which they have relied.There are clearly two competing arguments against proprietary estoppel, the first being that once there has been detrimental reliance on an assurance, it is unconscionable to withdraw it. Indicating that unconscionaibility is a function of the three elements. If unconscionaibility was seen as a separate element then it would be pointless in having formalities as it wouldnt matter whether it was unconscionable or not as long as the other elements had been satisfied. The second view on unconscionaibility is that of it being a separate fourth element and in some circumstance this can be seen as being successful for example in commercial cases where the first three elements of proprietary estoppel have been established but it would be unconscionable for the claimant to benefit due to the lack of formalities and contractual agreement.