E.R. Ives Investment Ltd v High

In E.R. Ives Investment Ltd v High ([1967] 2 QB 379, CA (Eng)) D built a house. W built a block of flats on neighbouring land. D noticed that the foundations of the flats encroached onto his land. D and W agreed orally that D could have a right of way over W’s land between D’s land and a road. In return, W could keep the foundations on D’s land. They exchanged letters confirming this agreement. No deed was ever prepared (though the idea of a deed was mentioned in discussions) and D did not register the right of way under the relevant English registration (which provided that unregistered but registrable rights would be void as against later purchasers in good faith). W sold the flats to T. D built a garage on his land that could only be used if the land was approached via the right of way that had been agreed. T approved of the building of the garage. D contributed to the cost of resurfacing the yard over which he had a right of way. T sold the flats to P. The sales particulars and the conveyance to P each made it clear that the conveyance to P was subject to the right of way. P claimed that the right of way was void as against him as it had not been registered. The English Court of Appeal found against P: the right of way was binding on it. It was estopped from denying that it was subject to the right of way,

Common to all of the judgments in the English Court of Appeal is the idea that D enjoyed an equity which bound P. Lord Denning MR thought that there were two alternative bases for this equity. First, the idea of mutual benefit and burden (the owners of the flats could not enjoy the benefit of having their foundations on D’s land and deny that they were subject to the burden of the right of way. Alternatively, W and T (by virtue of their conduct described above) were estopped from denying that they were bound by D’s equity. P took with notice of the equity and so was bound by it. Danckwerts LJ pursued a much more straightforward proprietary estoppel analysis.

The lack of registration was not a problem since the general view of the Court of Appeal seems to have been that this equity was not something that could be registered anyway. It was not a case of a contractual agreement to grant the easement; rather it was a free-standing equity that did not fall into a registrable category and possibly could not be registered at all.

Winn LJ made an interesting suggestion as to how third parties would be bound (his counter-suggestion to Lord Denning’s mutual benefit and burden?):

‘Estoppels arising from representations made by owners of land that rights exist affecting the land will, unless in form they are limited to the duration of the interest of the representor, bind successors to his title.’ (at 405).

It would obviously be unsatisfactory to leave this situation open to the possibility of a later flat owner coming along with no notice of the equity and taking free of it. There was a need for some self-perpetuating solution that would survive changes of ownership.

2 Responses to “E.R. Ives Investment Ltd v High”

  1. Proprietary estoppel in contract-like settings « Michael Lower's Blog Says:

    […] constituted a constructive trust and so fell within section 2(5). In the rather earlier case of E.R. Ives Investment Ltd v High, however, estoppel operated on similar facts even though this seemed to give effect to a contract […]

  2. Proprietary estoppel in contract-like settings | Land Law Says:

    […] constituted a constructive trust and so fell within section 2(5). In the rather earlier case of E.R. Ives Investment Ltd v High, however, estoppel operated on similar facts even though this seemed to give effect to a contract […]

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