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A means of acquiring rights in land in an informal manner.
Proprietary estoppel is a means by which rights in land can be acquired informally by the making of promises and reliance on them so as to incur a detriment through that reliance. Where it would be unconscionable for the person who made the promise to withdraw from it, an equity arises that the Court may, on a discretionary basis, enforce. In registered land, s.116 of the Land Registration Act 2002 provides that proprietary estoppels are capable of binding third parties as overriding interests.
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Due diligence—easements—checklist A property may: • have the benefit of easements exercisable over other property; or • be subject to easements exercisable over the property for the benefit of other property The land over which an easement is exercised is called the 'servient land'. The land with the benefit of an easement is called the 'dominant land'. An easement may entitle the owner of dominant land to: • make use of the servient land (eg a right of way), or • receive something from the servient land without interference or obstruction (eg a right of light, air or support) An easement may require the owner of servient land to refrain from using the servient land in such a way as to interfere with the easement, for example: • by leaving a right of way over the servient land clear and unobstructed, or • by not building on the servient land in such a way as to, for example, obstruct the light received by the dominant land An easement does not...
Due diligence—restrictive covenants—checklist Title to land (both registered and unregistered) may show that the owner of the land, or a predecessor in title, has entered into covenants concerning all or part of the land. These covenants may be positive in nature (such as a covenant to maintain a fence) or restrictive (such as a covenant not to build next to a boundary). Covenants will always be enforceable between the original covenanting parties but a distinction is made between positive and restrictive covenants for the purposes of establishing their effect on successors in title to the original covenanting parties. This Checklist is for use as part of a due diligence exercise where a property is subject to and/or has the benefit of one or more restrictive covenants. These covenants may be: • imposed for the landowner’s own benefit; these are personal and are only enforceable by the original parties to the covenant unless expressly assigned to a third party • part of a scheme, such as a building scheme, where covenants...
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This Practice Note discusses issues that arise in proprietary estoppel in a property context. For a general discussion of proprietary estoppel, see Practice Note: Proprietary estoppel.The doctrine of proprietary estoppelProprietary estoppel is a means by which property interests can be affected or created, so as to make the assertion of strict rights unconscionable. The estoppel gives rise to ‘an equity’ in favour of the person who is entitled to assert the estoppel. Unlike other kinds of estoppel, it gives rise to a cause of action.Proprietary estoppel arises where:•an owner of land (D) makes an assurance or promise, or gives encouragement, to another party (C) to believe that they have or will enjoy some right or benefit over D’s property•C reasonably relies on that assurance, promise or encouragement•C suffers detriment as a result of its reliance•then D seeks to take unconscionable advantage of C by denying them the right or benefit which they expected to receiveAlthough all these elements must usually be satisfied, it is wrong to treat them as rigidly...
The requirements set out in section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A 1989) do not apply to certain contracts and trusts. This Practice Note sets out what those contracts and trusts are, and how the exceptions are implemented.Excepted contractsThe contractual formalities set out in LP(MP)A 1989, s 2 do not apply to contracts:•for leases not exceeding three years (ie short leases under Law of Property Act 1925, s 54)•made in the course of a public auction•regulated under the Financial Services and Markets Act 2000 (other than a regulated mortgage contract, regulated home reversion plan, regulated purchase plan or a regulated sale and rent back agreement)Constructive trustsThe statutory formalities set out in Law of Property (Miscellaneous Provisions) Act 1989, s 2 do not affect the creation or operation of resulting, implied or constructive trusts. They are not required to be evidenced in writing.A constructive trust arises in connection with the legal title to property where one party has so conducted themselves that it would be inequitable...
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Cohabitant claims under the Trusts of Land and Appointment of Trustees Act 1996—client guide This document provides general guidance regarding the property rights of cohabitants and claims under the Trusts of Land and Appointment of Trustees Act 1996. Your family lawyer will be able to provide specific advice based on your circumstances. Who can apply? Cohabitants do not have the same rights to make property claims as married couples or civil partners. Instead, disputes between cohabitants regarding their interests in a property are determined in accordance with the law of trusts. The 'common law' wife or husband does not exist in law, and claims by cohabitants are very limited in comparison with spouses or civil partners. In some circumstances it may be possible to make a claim on behalf of a child (see: Financial arrangements for children—client guide). There are two main ways in which a cohabitant may have an interest in a property: • as a joint owner, or • where the property is in the...
Letter of claim—proprietary estoppel claim Dear [insert organisation name] Our Client: [insert name] Your Client: [insert name] Re: [insert property address] We act on behalf of [insert name]. This is our letter of claim in relation to our client’s claim to [an interest in] the property known as [insert property address] (the Property) by virtue of proprietary estoppel. Background [Provide a summary of the relevant factual background.] Our client’s proprietary estoppel claim In summary, as explained above, [representor] repeatedly represented to our client that [insert details of what the claimant says was represented to them]. Our client trusted [representor] and relied on the promises and representations [representor] made to [him/her] to [his/her] detriment, in particular by [summarise the strongest 2 or 3 points on detriment]. It is therefore unconscionable for our client not to receive [explain what the claimant says they should receive] and for the Property to instead [explain the status quo, ie what would happen to the property but for the claimant’s claim]. Law As...
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Where the executors of an estate grant a licence to an individual who resides in the deceased property but they refuse to leave that property, and the executors have served a notice to quit, is there any case law to support the person living in the property successfully relying on proprietary estoppel to remain in the property? A proprietary estoppel is unlike other forms of estoppel in that it is a means of creating rights in property and gives rise to a cause of action (and as such it is not limited to use 'as a shield, not a sword’). A proprietary estoppel arises where: • an owner of land (D) makes an assurance or promise, or gives encouragement, to another party (C) to believe that they have or will enjoy some right or benefit over D’s property • C reasonably relies on that assurance, promise or encouragement • C suffers detriment as a result of their reliance • then D seeks to take unconscionable advantage of C by denying...
Where an adverse possession claim in respect of registered land failed to specify the grounds relied on under paragraph 5 of Schedule 6 to the Land Registration Act 2002, and was rejected by HM Land Registry, can the applicant now rely on those grounds, or must they now wait two years before re-applying? In cases of adverse possession of registered land where the limitation period had not expired by 13 October 2003, an application for registration is governed by Schedule 6 to the Land Registration Act 2002 (LRA 2002). By LRA 2002, Sch 6, para 1, a person may apply to be registered if they have been in adverse possession for ten years (subject to provisions if the squatters has been recently evicted, is subject to possession proceedings or a judgement for possession has been given). Under LRA 2002, Sch 6, para 3, a person given notice of the application may require it to be dealt with under LRA 2002, Sch 6, para 5, which sets out further conditions that...
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This week's edition of Property Disputes weekly highlights includes an analysis of a case where the Technology and Construction Court clarified the limits of recoverable loss claims for damages under the Defective Premises Act 1972, an Upper Tribunal decision overturning a remediation order citing procedural irregularities, a Court of Appeal decision on whether secured debts incurred prior to a debt moratorium are excluded, and a High Court decision dismissing a beneficial interest claim in a civil recording and possession claim under the Proceeds of Crime Act 2002.
This week's edition of Family weekly highlights includes details of a speech by Mr Justice Nicklin on open justice and details of the Migration Advisory Committee's new family visa financial requirement review. Analysis of recent judgments on disclosure of journalistic sources, non-matrimonial assets and expert witnesses in care proceedings are included.
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