Proprietary Estoppel
The fundamental issues in proprietary estoppel cases is the question whether a claimant has any beneficial interest in the property, in particular, quasi matrimonial relationship which had broken up.
When discussing estoppel questions, students need to first explore the various aspects such as, whether there is resulting trust, and if not, whether constructive trust could be established, and if not possible, then explore the possibility of applying the estoppel doctrine.
A resulting trust is based on the presumed intention of the parties and equity will make this presumption which is rebuttable when one party has made a direct contribution to the purchase price, or if they can establish that there is a common intention to have equitable beneficial interest in the property.
In Bull v Bull, the Court of Appeal states that a resulting trust arises where property purchased by two or more person but of which the legal title is held by one of them on a resulting trust for himself and the others in equity.
If a claimant did not contribute directly to the purchase price, then there is no resulting trust.
In Pettitt v Pettitt, the court held that it is possible for a non legal owner of property to claim an equitable ownership interest in someone else's property. The principle is that a person may claim an equitable interest in property belonging to another if they can establish a common intention that this was to be the case. It can be by way of contributions to the purchase price which will give rise to resulting trust or by constructive trust based upon inequitable conduct and detrimental reliance.
In Grant v Edward, the Court of Appeal established 3 conditions that must be met before a constructive trust can arise: Firstly, there must be a common intention that the claimant should have beneficial interest in the subject property; and that, in reliance to the common intention, the claimant had acted to her detriment; and finally, there is equitable fraud on the part of the owner.
In the 1970s, under the influence of Lord Denning, the doctrine of constructive trust was expanded to give the court power to grant an equitable interest whenever the court thought it just and equitable to do so (see: Falconer v Falconer (1970) & Eves v Eves (1975)).
In Eves v Eves, the Court of Appeal held that if a reasonable person would have believed that the property owner was making a statement about ownership of the property to another, the particular promisee is entitled to rely on it.
However, this jurisdiction has now returned the law to the spirit of Pettitt by the House of Lords in Lloyds Bank v Rosset (1989).
In Lloyds Bank v Rosset, the House of Lords laid down the requirements for the establishment of a common intention constructive trust: there must be an express common intention that the non-legal owner should have a beneficial interest in the property; and that the non-legal owner had relied on that common intention and had acted to her detriment or had significantly altered her position.
Lord Bridge added further that, in the absence of an express common intention, it is doubtful whether anything less than direct contribution to the purchase price by the non legal owner would be sufficient to create a constructive trust.
If there is no express common intention, the question arise is whether indirect contribution by the claimant such as contributing to household expenses, taking care of the children, gardening and paying for improvements and renovation of the house could imply common intention.
In LeFoe v LeFoe, the Court of Appeal held that a constructive trust arises if a wife had made direct financial contributions such as the day-to-day expenditures, which had enabled the husband to pay the mortgage loan, then she had a beneficial interest in the property. This decision by the Court of Appeal was much welcome and represents a much flexible approach as compared to the Rosset principles.
However, it must be noted that the wife did actually contributed some 10,000p to help the husband to pay the mortgage loan.
In Drake v Whipp (1995) the Court of Appeal provides clear and much needed judicial recognition for the fact that resulting and constructive trusts are not the same. In resulting trust, the claimants share was directly related to the cost of acquisition of the property. In constructive trust, what was needed was a common intention that the party without legal title would have a beneficial interest and that that party had acted to her detriment in reliance on that intention.
If there is only words of gratitude and encouragements including the fact that the couple had agreed to share communal living expenses, it is doubtful such common intention could be inferred.
Burns v Burns (1984) made it clear that such a promise cannot be inferred from the fact that a person share some of the obligations of communal living, such as doing house cores or gardening.
It may be look to be unfair that the unmarried wife should have no rights against the man whom she had lived and served for so many years. However, the court do not have the jurisdiction to make such an order on the basis of fair and reasonable distribution of the property if there is no such common intention.
According to Fox LJ,
"...The claimant entered upon her relationship with the defendant knowing there was no prospect of his marrying her. She lived with him for 5 years as man and wife and at the end of it, has no right against him."
In Rosset, Lord Bridge explained further that neither a common intention by a spouse that the house was to be renovated as a joint-venture, nor a common intention that it was to be shared by them and their children as the family home threw any light on their intention with respect to the beneficial ownership of the property.
In Gissing v Gissing (1971), the House of Lords held that having a baby and paying household expenses is insufficient to establish any beneficial interest. Their Lordship states that oral promise must be real rather than imagined.
In Pettitt v Pettitt (1970), the House of Lords held that decorating, gardening and looking after the children is insufficient contribution to constitute beneficial interest.
The Doctrine of proprietary estoppel was established in Lord Kingsdom's dissenting speech in Ramsden v Dyson. The underlying rationale of this doctrine is that where the owner of land knowingly encourages another to act or acquiescene in his acting to his detriment on the understanding that he is to have an interest in that land, the owner will subsequently be estopped from asserting his strict legal rights and may indeed be compelled to give effect to that equity that has arisen in favour of that other.
Traditionally, the criteria to rely on proprietary estoppel was illustrated in Willmott v Barber which was named as the 5-Probandas and was affirmed in Matharu v Matharu. Fry J identified 5-elements that are necessary before the court will resot to estoppel:
1) That the claimant have made a mistake regarding his legal rights;
2) The claimant had expended money or done some acts on the strength of that belief;
3) The owner of the land knew his own right;
4) The owner also knew of the claimants mistaken belief; and
5) The owner had encourage the claimant in his expenditure of money or performance of acts.
However, the doctrine was deconstructed under Taylor Fashion v Liverpool Victoria Trustees. Oliver J opined that a claimant can establish an estoppel if he can prove:
1) that there was an assurance by the owner to the claimant;
2) that the claimant did in fact relied on the assurance;
3) the claimant suffered detriment in reliance on the assurance;
4) that it will be unconscionable for the owner to resile on his promise.
The principles in Taylor Fashions was followed in Jennings v Rice (2002) which evolved a far broader approach and more flexible than the 5-Probandas and appears to be followed in most modern cases.
The basis of proprietary estoppel is the interposition of equity. Equity comes in, true to form, to mitigate the rigour of strict laws (Lord Denning in Crabb v Arun DC (1976))
In Hughes v Metropolitan Railway Co (1877) Lord Cairns said:
"It is the first principle upon which all courts of equity proceed, that it will prevent a person from insisting his strict legal rights, whether arising under a contract, or on his title deeds, or by statute, when it would be inequitable for him to do so having regard to the dealings which have taken place between the parties."
If a person makes a promise knowing or intending that the other will act upon it, and he does act upon it, then the court of equity will not allow him to resile his promise. Short of an actual promise, if he, by his words or conduct, so behaves as to lead another to believe that he will not insist on his strict legal rights, knowing or intending that the other will act on that belief, and he does so act, then equity will favour the other. This shows that equity does not depend on agreement, but on words or conduct.
In Gillett v Holt (2000), Robert Walker makes it clear that the fundamental principle is that equity will react to prevent unconscionable conducts which permeates all the elements of the doctrine.
In Gillett v Holt, the defendant H persuaded the claimant G to give up his education and work for H in his farm. H assured G of his future promising to leave the bulk of his estate to G and made a will to that effect. After 40 years, the relationship between them fell out. H then made a new will and excluded G. G took an action claiming that under proprietary estoppel. The Court of Appeal allowed G's claim. G had relied on the assurance given by H and give up his education. The detriment was that G gave up his education to work on the farm. H was unconscionable in withdrawing his promise.
There can be no doubt that reliance on the promise and detriment suffered are two of the requirements necessary to establish proprietary estoppel and that the basis of estoppel is the interposition of equity, thus the requirement of unconscionability (Jennings v Rice (2002).
In Wayling v Jones (1993), the court stress that in order to establish reliance, it is necessary to establish that once a claimant had shown that the promise were made and that the claimant's conduct was such that inducement to act in reliance on those promise could be inferred, the burden of proof will shift to the defendant to disprove reliance.
In Gillett v Holt, Robert Walker LJ sets out the relevant principles as to the reliance and detriment required in proprietary estoppel citing the judgment in Wayling v Jones (1993) as follows:
1) there must be a sufficient link between the promise relied upon and the conduct which constitutes the detriment;
2) the promise relied upon do not have to be the sole inducement for the conduct; it is sufficient if they are an inducement;
3) once it has been established that promise was made and that there has been conduct by the claimant of such a nature that inducement may be inferred then the burden of proof shifts to the defendant to establish that he did not rely on the promise.
The court will view assurance, reliance and detriment as a whole and not separately.
In Greaseley v Cooke, the court held that once a promise and detrimental reliance is established, the burden of proof shift to the defendant to rebut the presumption.
In Grant v Edward, Nourse LJ explained that for detrimental reliance, it must be sufficient to constitute conduct on which the claimant could not have been expected to embard unless she believed she would have a beneficial interest in the property.
The detriment must be sufficiently substantial to make it unconscionable for the maker to resile on his promise (Gillett v Holt).
However, the defence could argue that equity raised by the claimant could be balanced and discharged by some acts of the promisor, like, paying for the claimant children 's school fees, medical expenses, etc (Sledmore v Dalby).
Generally, detriment of entering a relationship can be balanced by benefits and therefore may be insufficient to sustain a claim.
Ottey v Grundy, the court said: "... coping with this situation cannot be characterised as part and parcel of an ordinary relationship nor can it be fairly be regarded as counter-balanced by the good times which intervened between the bad. Her career prospect could only have been made worse by her prolonged absence from her career."
In the course of his judgment in Gillett v Holt, Robert Walker LJ accepted the argument that what makes an assurance binding is the detrimenal reliance on the promise by the person to whom the assurance is given. After that time, it is too late for the maker of the assurance to change his mind. According to Robert Walker LJ, assurance once given could become irrevocable when the claimant had acted to her detriment in reliance on that assurance.
In various cases, it can be seen that a promise was made and was often calculated to influence a decision in the favour of the promisor. Accordingly, it could be inferred that if the promise was withdrawn, the claimant would not have embarked acts that constitute the detriment. Therefore, it would then be unconscionable for the promisor to resile on his promise.
Once proprietary estoppel is established, the court would then need to decide on an appropriate form of relief. The question then arise is what is the appropriate remedy and what way could equity be justified to do justice to the claimant.
In Crabb v Arun DC, Lord Scarman said, in deciding remedial award, the court would take into account the expectation of the claimant; the detriment suffered; and the expectation and detriment are not out of proportion.
In Jennings v Rice, the court held that the remedy which the court would grant when proprietary estoppel has been established, should be no more than is necessary to protect against unconscionable conduct, that is, it must be proportionate to the detriment suffered. The court's duty was to satisfy the equity rather than satisfying the claimant's expectation.
In Gillett v Holt, Robert Walker LJ said the court approach this task in a cautious way, in order to achieve the minimum equity to do justice to the claimant.
Robert Walker LJ suggested that the requirement of proportionality is more easily satisfied where there was an assurance to transfer specific property. In each case, the claimant's expectation and the elements of detriment will have to be defined with clarity. However, the consensual elements of what has happened suggests that the claimant and the benefactor may probably regard the expected benefit and the accepted detriment as being unequivalent, or at any rate, obviously disproportionate.
However, the claimant's expectation may not be focused on any specific property. In Re Basham (1986), the judge rejected the submission that there must be some clearly identified piece of property.
In Re Basham (1987), the stepfather told his stepdaughter and her husband to live with him. They both took after him and took care of repairs and gardening. Her stepfather promised to give the house to her. He died intestate and his nect of kin claim the house. The court held that she was entitled to the entire estate.
In Robert Walker LJ's view, the general proporsition that the relationship between the promise and the remedy must be proportionate, and that the promise, even if of a specific property is only a starting point. If the claimant's expectation are out of all proprotion to the detriment which the claimant had suffered, the court can and shoul recognise that the claimant's equity should be satisfied in another way.
In Pascoe v Turner, the court suggested two alternatives in that they could either declare that the claimant had a licence to occupy the house for life, or they could order P to transfer the fee simple of the house to her. The court decided that equity could only be justified by requiring the promisor to give effect to his promise and order the coveyance of the house to the claimant.
In Tanner v Tanner (1975), a mistress and her children gave up her council flat to live with the man. When they quarrelled, the man claimed possession. The county court made an order for possession against her. She appealed. The Court of Appeal (Lord Denning) held that since the woman had given valuable consideration by giving up her council flat, she had a contractual licence to live in the house as long as her children were of school age.
In deciding the form of remedy to grant, the court will have regard to the nature of the assurance given. The court will make such award as would do justice between the parties (Jennings v Rice).
Therefore, proper weights must be given to the factors as discussed and that equity may only be justified by requiring the promisor to give effect to his promise. In order to protect the claimant's right, it would be necessary for the court to order the perfection of the imperfect gift by conveying the expectations that constitute the promise made to the claimant.
More cases:
In Oxley v Hiscock (2004), the Court of Appeal considered that, where two persons contributed to the purchase of land conveyed into the name of one of them and where there was no agreement about the quantification of their respective shares, the court was entitled to take into account the whole course of conduct between the parties in determining what would be a fair share by imputing a common intention as to the parties' respective shares if they is, in fact no such common intention.
Goodman v Gallant
Fact: M and wife G bought a house together. M paid 25% and G paid 75%. Title was in M's name and beneficial interest was declared as joint-tenants. They parted and G claim 75% share.
Held: If purchaser declared expressly that they are joint tenants, then there is no resulting trust. If joint tenancy is severed into tenancy in common, the beneficial interest will be equal share basis even though they had contributed unequal shares.
Burns v Burns
When an unmarried couple separated, the powers conferred by the Matrimonial Causes Act 1973 in relation to the division of property of married couples on divorce did not apply, and the court had no jurisdiction to make an order on the basis of the fair and reasonable division of property.
When discussing estoppel questions, students need to first explore the various aspects such as, whether there is resulting trust, and if not, whether constructive trust could be established, and if not possible, then explore the possibility of applying the estoppel doctrine.
A resulting trust is based on the presumed intention of the parties and equity will make this presumption which is rebuttable when one party has made a direct contribution to the purchase price, or if they can establish that there is a common intention to have equitable beneficial interest in the property.
In Bull v Bull, the Court of Appeal states that a resulting trust arises where property purchased by two or more person but of which the legal title is held by one of them on a resulting trust for himself and the others in equity.
If a claimant did not contribute directly to the purchase price, then there is no resulting trust.
In Pettitt v Pettitt, the court held that it is possible for a non legal owner of property to claim an equitable ownership interest in someone else's property. The principle is that a person may claim an equitable interest in property belonging to another if they can establish a common intention that this was to be the case. It can be by way of contributions to the purchase price which will give rise to resulting trust or by constructive trust based upon inequitable conduct and detrimental reliance.
In Grant v Edward, the Court of Appeal established 3 conditions that must be met before a constructive trust can arise: Firstly, there must be a common intention that the claimant should have beneficial interest in the subject property; and that, in reliance to the common intention, the claimant had acted to her detriment; and finally, there is equitable fraud on the part of the owner.
In the 1970s, under the influence of Lord Denning, the doctrine of constructive trust was expanded to give the court power to grant an equitable interest whenever the court thought it just and equitable to do so (see: Falconer v Falconer (1970) & Eves v Eves (1975)).
In Eves v Eves, the Court of Appeal held that if a reasonable person would have believed that the property owner was making a statement about ownership of the property to another, the particular promisee is entitled to rely on it.
However, this jurisdiction has now returned the law to the spirit of Pettitt by the House of Lords in Lloyds Bank v Rosset (1989).
In Lloyds Bank v Rosset, the House of Lords laid down the requirements for the establishment of a common intention constructive trust: there must be an express common intention that the non-legal owner should have a beneficial interest in the property; and that the non-legal owner had relied on that common intention and had acted to her detriment or had significantly altered her position.
Lord Bridge added further that, in the absence of an express common intention, it is doubtful whether anything less than direct contribution to the purchase price by the non legal owner would be sufficient to create a constructive trust.
If there is no express common intention, the question arise is whether indirect contribution by the claimant such as contributing to household expenses, taking care of the children, gardening and paying for improvements and renovation of the house could imply common intention.
In LeFoe v LeFoe, the Court of Appeal held that a constructive trust arises if a wife had made direct financial contributions such as the day-to-day expenditures, which had enabled the husband to pay the mortgage loan, then she had a beneficial interest in the property. This decision by the Court of Appeal was much welcome and represents a much flexible approach as compared to the Rosset principles.
However, it must be noted that the wife did actually contributed some 10,000p to help the husband to pay the mortgage loan.
In Drake v Whipp (1995) the Court of Appeal provides clear and much needed judicial recognition for the fact that resulting and constructive trusts are not the same. In resulting trust, the claimants share was directly related to the cost of acquisition of the property. In constructive trust, what was needed was a common intention that the party without legal title would have a beneficial interest and that that party had acted to her detriment in reliance on that intention.
If there is only words of gratitude and encouragements including the fact that the couple had agreed to share communal living expenses, it is doubtful such common intention could be inferred.
Burns v Burns (1984) made it clear that such a promise cannot be inferred from the fact that a person share some of the obligations of communal living, such as doing house cores or gardening.
It may be look to be unfair that the unmarried wife should have no rights against the man whom she had lived and served for so many years. However, the court do not have the jurisdiction to make such an order on the basis of fair and reasonable distribution of the property if there is no such common intention.
According to Fox LJ,
"...The claimant entered upon her relationship with the defendant knowing there was no prospect of his marrying her. She lived with him for 5 years as man and wife and at the end of it, has no right against him."
In Rosset, Lord Bridge explained further that neither a common intention by a spouse that the house was to be renovated as a joint-venture, nor a common intention that it was to be shared by them and their children as the family home threw any light on their intention with respect to the beneficial ownership of the property.
In Gissing v Gissing (1971), the House of Lords held that having a baby and paying household expenses is insufficient to establish any beneficial interest. Their Lordship states that oral promise must be real rather than imagined.
In Pettitt v Pettitt (1970), the House of Lords held that decorating, gardening and looking after the children is insufficient contribution to constitute beneficial interest.
The Doctrine of proprietary estoppel was established in Lord Kingsdom's dissenting speech in Ramsden v Dyson. The underlying rationale of this doctrine is that where the owner of land knowingly encourages another to act or acquiescene in his acting to his detriment on the understanding that he is to have an interest in that land, the owner will subsequently be estopped from asserting his strict legal rights and may indeed be compelled to give effect to that equity that has arisen in favour of that other.
Traditionally, the criteria to rely on proprietary estoppel was illustrated in Willmott v Barber which was named as the 5-Probandas and was affirmed in Matharu v Matharu. Fry J identified 5-elements that are necessary before the court will resot to estoppel:
1) That the claimant have made a mistake regarding his legal rights;
2) The claimant had expended money or done some acts on the strength of that belief;
3) The owner of the land knew his own right;
4) The owner also knew of the claimants mistaken belief; and
5) The owner had encourage the claimant in his expenditure of money or performance of acts.
However, the doctrine was deconstructed under Taylor Fashion v Liverpool Victoria Trustees. Oliver J opined that a claimant can establish an estoppel if he can prove:
1) that there was an assurance by the owner to the claimant;
2) that the claimant did in fact relied on the assurance;
3) the claimant suffered detriment in reliance on the assurance;
4) that it will be unconscionable for the owner to resile on his promise.
The principles in Taylor Fashions was followed in Jennings v Rice (2002) which evolved a far broader approach and more flexible than the 5-Probandas and appears to be followed in most modern cases.
The basis of proprietary estoppel is the interposition of equity. Equity comes in, true to form, to mitigate the rigour of strict laws (Lord Denning in Crabb v Arun DC (1976))
In Hughes v Metropolitan Railway Co (1877) Lord Cairns said:
"It is the first principle upon which all courts of equity proceed, that it will prevent a person from insisting his strict legal rights, whether arising under a contract, or on his title deeds, or by statute, when it would be inequitable for him to do so having regard to the dealings which have taken place between the parties."
If a person makes a promise knowing or intending that the other will act upon it, and he does act upon it, then the court of equity will not allow him to resile his promise. Short of an actual promise, if he, by his words or conduct, so behaves as to lead another to believe that he will not insist on his strict legal rights, knowing or intending that the other will act on that belief, and he does so act, then equity will favour the other. This shows that equity does not depend on agreement, but on words or conduct.
In Gillett v Holt (2000), Robert Walker makes it clear that the fundamental principle is that equity will react to prevent unconscionable conducts which permeates all the elements of the doctrine.
In Gillett v Holt, the defendant H persuaded the claimant G to give up his education and work for H in his farm. H assured G of his future promising to leave the bulk of his estate to G and made a will to that effect. After 40 years, the relationship between them fell out. H then made a new will and excluded G. G took an action claiming that under proprietary estoppel. The Court of Appeal allowed G's claim. G had relied on the assurance given by H and give up his education. The detriment was that G gave up his education to work on the farm. H was unconscionable in withdrawing his promise.
There can be no doubt that reliance on the promise and detriment suffered are two of the requirements necessary to establish proprietary estoppel and that the basis of estoppel is the interposition of equity, thus the requirement of unconscionability (Jennings v Rice (2002).
In Wayling v Jones (1993), the court stress that in order to establish reliance, it is necessary to establish that once a claimant had shown that the promise were made and that the claimant's conduct was such that inducement to act in reliance on those promise could be inferred, the burden of proof will shift to the defendant to disprove reliance.
In Gillett v Holt, Robert Walker LJ sets out the relevant principles as to the reliance and detriment required in proprietary estoppel citing the judgment in Wayling v Jones (1993) as follows:
1) there must be a sufficient link between the promise relied upon and the conduct which constitutes the detriment;
2) the promise relied upon do not have to be the sole inducement for the conduct; it is sufficient if they are an inducement;
3) once it has been established that promise was made and that there has been conduct by the claimant of such a nature that inducement may be inferred then the burden of proof shifts to the defendant to establish that he did not rely on the promise.
The court will view assurance, reliance and detriment as a whole and not separately.
In Greaseley v Cooke, the court held that once a promise and detrimental reliance is established, the burden of proof shift to the defendant to rebut the presumption.
In Grant v Edward, Nourse LJ explained that for detrimental reliance, it must be sufficient to constitute conduct on which the claimant could not have been expected to embard unless she believed she would have a beneficial interest in the property.
The detriment must be sufficiently substantial to make it unconscionable for the maker to resile on his promise (Gillett v Holt).
However, the defence could argue that equity raised by the claimant could be balanced and discharged by some acts of the promisor, like, paying for the claimant children 's school fees, medical expenses, etc (Sledmore v Dalby).
Generally, detriment of entering a relationship can be balanced by benefits and therefore may be insufficient to sustain a claim.
Ottey v Grundy, the court said: "... coping with this situation cannot be characterised as part and parcel of an ordinary relationship nor can it be fairly be regarded as counter-balanced by the good times which intervened between the bad. Her career prospect could only have been made worse by her prolonged absence from her career."
In the course of his judgment in Gillett v Holt, Robert Walker LJ accepted the argument that what makes an assurance binding is the detrimenal reliance on the promise by the person to whom the assurance is given. After that time, it is too late for the maker of the assurance to change his mind. According to Robert Walker LJ, assurance once given could become irrevocable when the claimant had acted to her detriment in reliance on that assurance.
In various cases, it can be seen that a promise was made and was often calculated to influence a decision in the favour of the promisor. Accordingly, it could be inferred that if the promise was withdrawn, the claimant would not have embarked acts that constitute the detriment. Therefore, it would then be unconscionable for the promisor to resile on his promise.
Once proprietary estoppel is established, the court would then need to decide on an appropriate form of relief. The question then arise is what is the appropriate remedy and what way could equity be justified to do justice to the claimant.
In Crabb v Arun DC, Lord Scarman said, in deciding remedial award, the court would take into account the expectation of the claimant; the detriment suffered; and the expectation and detriment are not out of proportion.
In Jennings v Rice, the court held that the remedy which the court would grant when proprietary estoppel has been established, should be no more than is necessary to protect against unconscionable conduct, that is, it must be proportionate to the detriment suffered. The court's duty was to satisfy the equity rather than satisfying the claimant's expectation.
In Gillett v Holt, Robert Walker LJ said the court approach this task in a cautious way, in order to achieve the minimum equity to do justice to the claimant.
Robert Walker LJ suggested that the requirement of proportionality is more easily satisfied where there was an assurance to transfer specific property. In each case, the claimant's expectation and the elements of detriment will have to be defined with clarity. However, the consensual elements of what has happened suggests that the claimant and the benefactor may probably regard the expected benefit and the accepted detriment as being unequivalent, or at any rate, obviously disproportionate.
However, the claimant's expectation may not be focused on any specific property. In Re Basham (1986), the judge rejected the submission that there must be some clearly identified piece of property.
In Re Basham (1987), the stepfather told his stepdaughter and her husband to live with him. They both took after him and took care of repairs and gardening. Her stepfather promised to give the house to her. He died intestate and his nect of kin claim the house. The court held that she was entitled to the entire estate.
In Robert Walker LJ's view, the general proporsition that the relationship between the promise and the remedy must be proportionate, and that the promise, even if of a specific property is only a starting point. If the claimant's expectation are out of all proprotion to the detriment which the claimant had suffered, the court can and shoul recognise that the claimant's equity should be satisfied in another way.
In Pascoe v Turner, the court suggested two alternatives in that they could either declare that the claimant had a licence to occupy the house for life, or they could order P to transfer the fee simple of the house to her. The court decided that equity could only be justified by requiring the promisor to give effect to his promise and order the coveyance of the house to the claimant.
In Tanner v Tanner (1975), a mistress and her children gave up her council flat to live with the man. When they quarrelled, the man claimed possession. The county court made an order for possession against her. She appealed. The Court of Appeal (Lord Denning) held that since the woman had given valuable consideration by giving up her council flat, she had a contractual licence to live in the house as long as her children were of school age.
In deciding the form of remedy to grant, the court will have regard to the nature of the assurance given. The court will make such award as would do justice between the parties (Jennings v Rice).
Therefore, proper weights must be given to the factors as discussed and that equity may only be justified by requiring the promisor to give effect to his promise. In order to protect the claimant's right, it would be necessary for the court to order the perfection of the imperfect gift by conveying the expectations that constitute the promise made to the claimant.
More cases:
In Oxley v Hiscock (2004), the Court of Appeal considered that, where two persons contributed to the purchase of land conveyed into the name of one of them and where there was no agreement about the quantification of their respective shares, the court was entitled to take into account the whole course of conduct between the parties in determining what would be a fair share by imputing a common intention as to the parties' respective shares if they is, in fact no such common intention.
Goodman v Gallant
Fact: M and wife G bought a house together. M paid 25% and G paid 75%. Title was in M's name and beneficial interest was declared as joint-tenants. They parted and G claim 75% share.
Held: If purchaser declared expressly that they are joint tenants, then there is no resulting trust. If joint tenancy is severed into tenancy in common, the beneficial interest will be equal share basis even though they had contributed unequal shares.
Burns v Burns
When an unmarried couple separated, the powers conferred by the Matrimonial Causes Act 1973 in relation to the division of property of married couples on divorce did not apply, and the court had no jurisdiction to make an order on the basis of the fair and reasonable division of property.
This entry was posted
on Wednesday, June 14, 2006 at 6/14/2006 10:29:00 PM.
You can skip to the end and leave a response.
2:26 AMI think this post needs updating, especially in the light of Jones v Kernott and Stack v Dowden, as well as Yeoman's Row v Cobbe ...
» Post a Comment