Proprietary Estoppel - When Is A Promise Not A Proprietary Promise?

• Published date: 04 February 2022
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Family and Matrimonial, Trials & Appeals & Compensation, Real Estate, Wills/ Intestacy/ Estate Planning
• Law Firm: Russell-Cooke Solicitors
• Author: Ms Susannah Foden

Lessons to learn from Windsor-Clive v Rees [2021]

Proprietary estoppel claims are brought to enforce a promise made (and later broken) in respect of property or land. The textbook example involves an adult child who has spent years working for a low wage on their parents' farm on the promise that they would one day inherit the farm, only to later find that the farm has been left to someone else in the Will.

The case of Thorner v Major [2009] established three key elements necessary to successfully bring a claim.

1. That an assurance has been made to the claimant;
2. That the claimant has relied on it; and
3. That the claimant has suffered a detriment as a result of the reliance.

Such claims can be tricky as they usually turn on witness evidence and whose version of events is most persuasive to the judge.

The recent case of Windsor-Clive v Rees [2021] provides a warning to prospective claimants that the assurance relied upon must have been sufficiently specific as to the property purportedly promised.

Facts of the case

The claimants in this matter were landlords of a farm in Cardiff. The second defendant's late father, Jenkin Rees, lived and worked on the farm under tenancies dating back to the 1960s. The second defendant, Philip Rees, left school in 1977 and worked on the farm with his father. Jenkin Rees died in September 2021 and so Philip Rees was thereafter substituted as a defendant as his father's personal representative, as well as being a defendant in his own right.

In 2016 and 2017 the claimants obtained planning permission for a substantial housing development on the farm and surrounding land, to be carried out in phases over a 20 year period. The claimants were required to pay the Reeses a statutory compensation of five times the rent (being '45,000) in order to take possession of the farmland; in fact they offered to pay the Reeses '500,000 for possession of the land, but this offer was not accepted.

In 2018 the claimants served notices to quit in respect of each tenancy, which included the farmhouse in which Philip Rees lived with his mother. Jenkin Rees was unsuccessful in his attempts to challenge the notices to quit and the claimants subsequently brought a claim for possession of the farm in October 2020.

Jenkin Rees filed a defence in January 2021 which argued that he had relied on assurances made by the agents of the claimant to his detriment. He claimed that the claimants promised that they would only seek possession of the farm on several...