Estoppel in land law

AuthorR.J. Smith
PositionFellow of Magdalen College, Oxford
The topic concerning the ways in which estoppel may operate in land
law is a large one and so I shall confine myself to three principal
issues. The first concerns the discretionary nature of
remedy given
to a claimant when an estoppel has been established. The second
concerns the proprietary nature of estoppels: or, in other words, do
they bind purchasers? The third issue is whether licences may be
protected by estoppel. This is against the background that a contractual
licence does not bind purchasers. This was recently held by the English
Court of Appeal in 1988 after a full review of the cases in
Amtalt v. Arnold}
Before proceeding, what is the importance of estoppel in land law?
There are two main answers. The first is that it may enable an interest
to be created without the normal formalities being present. With a few
exceptions, legal interests have to be created by deeds and equitable
interests in writing. A slight extension of this formality point is that
promises will be enforced without consideration. What is important is
that the claimant believes that he or she has a right to the land, rather
than the category (gift or contract; covenant or grant) that lawyers
would employ. The second importance is that estoppels may create
rights that are otherwise not recognised. This is the third of my three
issues for full discussion later.
Before turning to these three issues, I should summarize very briefly
when an estoppel will arise.
Estoppel has at its heart the proposition that a person should not
make a representation or allow another to labour under a
misapprehension and then, after the other has acted upon it to his
detriment, be allowed to deny that which has been represented or
misapprehended. Estoppel has many applications in different
Fellow of Magdalen College, Oxford. The substance of
article was first
delivered in a lecture by the author at the Faculty of
University of the
West Indies, Cave Hill, Barbados, in April 1993.
1 [1989] Ch. 1.
circumstances: we are interested in what is generally described as
proprietary estoppel. This form of estoppel, at least in its modern
form, is usually traced back to Ramsden v. Dyson2 in the mid-
nineteenth century. Over the past thirty years, there has been a distinct
revival of interest in proprietary estoppel.
The requirements for estoppel were for many years treated as laid
down by Fry J. in 1880 in Willmott v. Barber.3 Five so-called
were listed:
1 the claimant (C) must have made a mistake as to his
2 C must have expended money or done some act
because of the mistake.
3 0 must be aware of his right (otherwise it is not
unconscionable for him to assert his title).
4 O must be aware of C's mistake.
5 O must have encouraged C's expenditure, either
directly or by not asserting his rights.
These requirements are not always insisted upon: the judgment of
Oliver J. in
Taylors Fashions
Ltd. v. Liverpool
Victoria Trustees
in 1979 has adopted a broader approach and this has been widely
accepted.5 Let me quote from his judgment, in which he accepts:6
"A very much broader approach which is directed to
ascertaining whether, in particular 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 rather than enquiring
2 (1866) L.R.I H.L. 129.
3 (1880) 15 Ch.D.96.
4 [1982] Q.B. 133 (decided 1979).
5 Habib Bank Ltd. v. Habib Bank AG Zurich [1981] 1 W.L.R. 1265 (Court
of Appeal). See also Robert Goff J. at first instance in Amalgamated
Investment and Property Co. Ltd. v. Texas Commerce International Bank
Ltd. [1982] Q.B. 84. The rules may be stricter in the case of pure
acquiescence, which was the context of Willmott v. Barber
6 At pp 151-152.

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