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Proprietary estoppel claim – But you said one day this would all be mine!

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Proprietary estoppel claim – But you said one day this would all be mine!

'Even standing by in silence can count as a promise depending on the facts of the case'

Geoffrey Kertesz

Partner

If only it were that simple. Sometimes people say one thing and then do quite another, either while they are alive or in their will. However, in certain cases, it may be possible to enforce a broken promise.

Where someone (1) makes a promise, (2) you rely on that promise, (3) you suffer a loss as a result and, after considering those three factors in the round, it would be ‘unconscionable’ for the person who made the promise to go back on his word, the concept of proprietary estoppel may provide help.

Every case is different and, while each of these parts of a proprietary estoppel claim does not stand alone, it is helpful to look at each in more detail.

Promise

The promise needs to be clear and be about a specific interest in property. The promise does not necessarily have to be a clear statement; vague comments can be good enough. Even standing by in silence can count as a promise depending on the facts of the case.

Reliance

A broken promise is not enough. There has to be a link between the promise and your having reasonably relied on it. In other words, generally speaking the promise has to induce you to rely on it.

Detriment

Finally, you must demonstrate that you suffered some sort of substantial loss (‘detriment’). Detriment can range from giving up work and moving to another city, to working for a reduced wage and giving up opportunities. You do not need to put a precise figure on the detriment.

Unconscionability

Even if you establish a promise, reliance, and detriment, you will only get home if you can also show that the result is particularly harsh or unfair.

It is important to remember that if a proprietary estoppel claim goes all the way to Court and is successful, the Court will only make the minimum award required to do justice, which may not be the same thing as an award that would satisfy your expectations.

Proprietary estoppel

These claims vary from case to case and depend almost entirely on the facts. As a result, whether you are bringing or defending a proprietary estoppel claim, a good deal of homework needs to be done to ensure your case is as strong as possible. Also, while most claims settle out of Court, in recent years a number of these claims have ended up in Court so you do need to be prepared, if necessary, to take a claim to trial.

20 Jun 2016

Geoffrey Kertesz