Tractor cultivating a field at Spring

Proprietary Estoppel: The Offside Rule of the Conveyancing World

We try our very best not to be traditional stuffy solicitor-types and bamboozle our clients with complicated concepts. The thing about the law, though, is that it does involve rather a lot of complicated stuff. We generally handle all that on behalf of our clients (after all, we probably wouldn’t have joined the legal profession if we weren’t attracted to big words), but sometimes it’s important for us to really get into the nitty gritty.

Enter proprietary estoppel. We know: even the name sounds too big for its boots. Think of this one as the offside rule of the conveyancing world, (everyone has heard of it but not that many people know how it works)… and indulge us as we do our best to bring it to life.

So what is proprietary estoppel?

Essentially, proprietary estoppel is a legal retort for those who have been promised a property inheritance that hasn’t come to fruition. It can come into play after the death of the property owner if the property owner’s will doesn’t leave said property to the person they’d promised it to.

Proprietary estoppel can also be argued in cases where there isn’t a valid will and intestacy laws mean property won’t pass to the person who believes they were pledged it.

Now, here’s the part where we try to paint a mental picture for you. Close your eyes for a moment and imagine that your uncle owns a farm. Can you see it? Great. You’ve always loved farming (cute baby animals! Lots of fresh air! Big tractors! Other exciting things that smell thrillingly rural!) and you spent a lot of time there as a child.

When you got older, your uncle promised that the farm would one day be yours and you started working there full time. Unfortunately, your dear uncle popped his clogs before he got round to writing a will. Intestacy laws mean that the farm will pass straight to your uncle’s farm-hating son, who is planning to sell the place the moment probate is granted.

And, voila, you might just have a case for proprietary estoppel.

Is it really that simple?

Erm, well, no, not really. We’ve missed out something fairly crucial, and that’s the importance of being able to show that the person who the promise was made to (the promise-ee, if you will) fully believed the promise and made decisions to their disadvantage because of it.

For example, the farmer’s niece or nephew in the above scenario would need to have lost out in some way as a result of believing the farm would one day be theirs. The loss would usually need to be a financial one.

Perhaps they:

  • Turned down educational opportunities that would have led to higher paying jobs
  • Accepted a lower wage at the farm than they would’ve earned elsewhere
  • Invested their own cash in improving the farm
  • Paid for renovations in a farm building they were living in
  • Built a cabin or other structure on property they believed would one day be theirs

Whatever the specific details, the promise-ee would need to be able to show that they believed the promise was genuine and made decisions on that basis. Short term pain for long term gain, so to speak.

Can a promise really be legally binding?

If you’ve been paying attention, you’ll probably have realised that what we’re saying is that promises can indeed be legally binding. Before you start panicking about what you said to your child when they wouldn’t eat their broccoli/go to sleep/brush their teeth, we’ll assure you that there are very clear caveats.

  1. The promise-ee needs to have lost out in some way
  2. The promise-ee needs to be able to prove beyond reasonable doubt that the promise was made

Let’s put you back in the role of the farm-loving niece or nephew. You’d need to be able to provide some sort of proof that your uncle had promised you the farm.

Legal documents would be excellent, but probably unlikely to exist, especially as the old chap hadn’t got round to making a will yet (tut tut). A signed promissory note or a photo of the farm with the caption ‘all this will be yours one day’ would also be great, but now we’re definitely clutching at straws.

There’s a good chance, though, that you’d be able to gather witness statements from family members and/or other farm employees who could confirm that your uncle had often talked about you taking over the farm.

Whatever you found, you’d need to have enough evidence in your favour to persuade a judge that, on balance, it was more likely your uncle had intended for you to have the farm than hadn’t.

What would happen if you made a claim of proprietary estoppel?

Truth be told, this kind of inheritance claim is still relatively rare. Saying that, there’s been a rise in these sorts of cases in recent years. If you’ve lost out on property you were previously promised, it’s certainly worth taking a good look at the facts and determining whether there’s enough of a case for proprietary estoppel.

You’d need to take specialist legal advice here, which may involve accepting that your claim just wasn’t strong enough to go all the way to court.

Equally, even if your case was strong enough and did go all the way to court… it doesn’t necessarily mean that the judge would wave a magic wand and grant you full ownership of the property. They may not be convinced about the promise, or they may decide to award you some kind of compensation for the loss you’d experienced instead.

What if someone makes a claim of proprietary estoppel against you?

Of course, you may well be the farm-hating cousin in the scenario and not the tractor-loving one. (We hear you, we’re not particularly big fans of mud ourselves). If you’re currently working your way through a labyrinth of a probate situation and someone has popped up claiming they were promised the property that’s now in your ownership… it will no doubt put even more of a downer on things.

Our advice here would be the same as above: you’d need to get an experienced solicitor on your side and gather as much evidence as possible. In this case, you’d be looking for documents and witness statements that made clear that either no promise was made, or that an alternative promise was made to you.

Whatever side you’re on, proprietary estoppel can involve some complicated legal footwork. If you’re on the hunt for advice on this, we’re always on hand for a chat. We promise to try not to bamboozle you with legal terms, so long as you promise to keep the tractor (and the football) chat to a minimum.


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