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Estoppels over land and third parties. An open question?

Published online by Cambridge University Press:  02 January 2018

Simon Baughen
Simon Baughen*
Affiliation:
University of Bristol
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Extract

The proprietary status of the contractual licence has long been a matter of dispute. In Arnold v Ashbum–Anstult the obiter remarks of Fox LJ signalled a return to orthodoxy in this area of the law. Unless a contractual licence can be supported by facts sufficient to support a constructive trust (and these, too, were restrictively defined by Fox LJ), it will not bind third parties. However, Fox W did not discuss rights over land arising by way of estoppel ( ‘estoppel rights’). The proposition that these can bind third parties has never attracted the controversy that surrounded the proprietary status of contractual licences. Nonetheless, due to the potential overlap between the two types of licence, it is a proposition that needs urgent re-evaluation in the light of Fox W’s views on contractual licences.

Type
Research Article
Information
Legal Studies , Volume 14 , Issue 2 , July 1994 , pp. 147 - 155
Copyright
Copyright © Society of Legal Scholars 1994

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References

1 [1989] Ch 1.

2 S. Moriarty in ‘Licences and Land Law: Legal Principles and Public Policy’ (1984) 100 LQR 376 refers to P N Todd (1981) Conv 347 at pp 351–5 as the sole voice dissenting from this proposition.

3 [1991] 1 AC 56.

4 At p 6.

5 ‘Equitable Rights of Cohabitees’ (1991) Conv 36 and ‘Consecutive Trusts of Homes—A Bold Approach’ (1993) 109 LQR 485.

6 ‘Constructive Trusts—a Note of Caution’ (1993) 109 LQR 114.

7 [1955] 1 WLR213.

8 (1853)17 Beav 60.

9 At p 75.

10 These had been prepared after the passsing of the Act but before the canal had been made and contained a statement that the canal would be made through the estate, in pursuance of the Act, which would render the estate very valuable.

11 (1858) 25 Beav 72.

12 (1862) 4 DeG, F & J 517.

13 Paul Todd at p 131 of Textbook on Trusrs (2nd edn, Blackstone Press Ltd) suggests that the use of this word indicates that the decision was based on the existence of an estate contract between father and son. However, apart from the problems of spelling out either a concluded contract or an offer from the memorandum, the fact that the memorandum was not decisive when it came to the relief to be awarded to the son would militate against a contractual analysis. It is submitted that ‘consideration’ is here being used in its non-technical sense as the ‘reason’ for equity's intervention.

14 At p 521.

15 At p 522.

16 (1884) 9 App Cas 699.

17 At p 714. This analysis was adopted in a similar case involving statutory compensation, Pennine Raceway v Kirklees Council [19831 QB 382.

18 J. Stuart Anderson Lawyers and the Making of English Land Law (Clarendon Press, 1992) p 296.

19 [1965] 2 QB 29.

20 (1973) 228 EG 1115.

21 [1955] 1 WLR 213. Ives v High [1967] 2 QB 279 contains dicta on this issue but was primarily decided on the basis of the doctrine of benefit and burden. In Williams v Smite [1979] Ch 291 a purchaser was held bound by an estoppel right, but the issue of the effect of such rights on third parties was never raised in the case.

22 (1810) 2 Taunt 278.

23 This proposition was tentatively advanced by Browne-Wilkinson V-C in Re Sharpe [1980] 1 WLR 219 at 226G. However, although the facts of the case could have led to a finding of estoppel, the decision was actually based on the imposition of a constructive trust following the granting of an irrevocable contractual licence. The dicta in Ives v High, where the purchaser had express notice through the particulars of sale, do not specify whether constructive notice would suffice to bind a purchaser.

24 The difference in the remedies granted in Dillwyn v Llewellyn and Inwards v Baker may be explicable in terms of the different relief sought by the occupier in those cases. In Dillwyn the son commenced proceedings and sought a declaration of his rights and an order that his father's executor execute a conveyance to him of the estate. In Inwards, in contrast, proceedings were commenced by the trustees of the father's will who sought possession of the bungalow occupied by the son.

25 The Court of Appeal had a further reason for choosing to deny an occupation remedy to the licensees in that while the original licensor was still alive it would have forced her to continue living at loggerheads in the same home as the licensees.

26 In Baker v Baker [1993] 2 FLR 247, the Court of Appeal were able to side-step the problems of the Settled Land Act 1925 arising out of a rent-free licence for life by estoppel, as the ousted occupier had no wish to resume occupation. The case, therefore, revolved around the quantum of damages to which the licensee was entitled.

27 [1965] AC 1175.

28 See G. Battersby ‘Contractual Licences as Proprietary Interest in Land’ (1991) Conv 36.

29 In Blacklocks v J B Developments [1982] Ch 183 the equity of rectification was held to constitute an overriding interest under s 70 (1) (g) of the Land Registration Act 1925.

30 A potential problem with classifying estoppel rights as inchoate & copyright; equities' would arise in a conflict between the equity and a subsequent purchaser for value of an equitable interest. A prior equitable interest would prevail against such a purchaser but not, it seems a mere equity, Phillips v Phillips (1861) 4 De G F & J 208 at 215.

31 [1988] AC 54.

32 [1976] Ch 179.

33 Cross J alluded to this problem in Poster v Slough Estates [1969] 1 Ch 495 where his obiter discussion of the registration of equitable easements over registered land tacitly assumes that estoppels, qua estoppels, cannot be registered as minor interests.