Oral land contracts and proprietary estoppel: Thandi v Saggu

The problem of oral land contracts and proprietary estoppel

England’s Law of Property (Miscellaneous Provisions) Act 1989 (‘LPMPA’) requires land contracts to be in writing and signed by both parties. Failure to comply results in the invalidity of the contract (LPMPA, s. 2(1)).

The LPMPA abolishes the doctrine of part performance since the doctrine presupposes the validity, but unenforceability, of oral land contracts. The LPMPA, s. 2(8) repeals section 40 of the Law of Property Act 1925 (‘LPA’) which rendered oral land contracts unenforceable but did not deny their existence as contracts. Also repealed then is section 40(2) of the LPA which provided for the continuing operation of part performance.

The LPMPA does, however, say that section 2 does not affect the creation or operation of resulting, implied or constructive trusts. This leaves some space for equity to give effect to oral land contracts (LPMPA, s. 2(5)). But where does this leave proprietary estoppel?

The courts worry that invoking proprietary estoppel in relation to oral land contracts undermines the LPMPA’s formalities requirements. So too, it might be said, does the use of the common intention constructive trust in relation to oral agreements relating to land. This, however, is expressly permitted by LPMPA s. 2(8). The lack of a similar saving provision for proprietary estoppel deepens the suspicion that its use in the land contract context should not be allowed.

Potential responses to the problem

The possible approaches to the use of proprietary estoppel in relation to land contracts seem to be:

Approach 1

To refuse to allow proprietary estoppel claims arising out of promises given in oral land contracts which ought to satisfy the LPMPA formalities rules. This would be the fullest recognition of a conflict between the formalities rules and the equitable doctrine. It would leave the common intention constructive trust as the principal ‘equitable safety valve’ to deal with cases where insistence on the LPMPA rules would be unconscionable.

Approach 2

To give free rein to proprietary estoppel claims even in the oral land contract context. The conflict between this and the formalities rules would be seen as an illusion: proprietary estoppel is seen as satisfying an equity that has arisen, rather than enforcing a contract.

Approach 3

To allow proprietary estoppel claims in relation to oral land contracts provided that the same facts could also give rise to a common intention constructive trust claim (which would seem to cover all, or the vast majority, of active encouragement cases) (Yaxley v Gotts).

The only problem with this is that it seems rather pointless. If a common intention constructive trust claim can succeed, what is the point of the proprietary estoppel claim? The answer to this may lie in the remedial discretion of the courts in proprietary estoppel.

Approach 4

To allow proprietary estoppel claims to succeed only where there is a ‘double assurance’ or ‘something more’ which estops promissor’s from pleading the formalities rules (Actionstrength; Cobbe; Kinane).

One problem here is that it is difficult to know what would amount to such a double assurance. Is the requirement satisfied by an oral assurance that is clearly intended to be immediately binding? But how is this different from the normal understanding of an assurance?

Approach 5

To allow proprietary estoppel claims to succeed where the claimant does not seek enforcement of the contract but is satisfied, for example, with a licence (Howe v Gossop).

This might, in effect, be a recognition of approach 2 above (that proprietary estoppel is not an enforcement of the contract).

If approach 5 is a version of approach 2, why not enforce the contract if that is what is needed to prevent unconscionability? If it is not a version of approach 2, it is not easy to understand the principle that justifies approach 5.

Thandi v Saggu

Thandi v Saggu ([2023] EWHC 2631) concerned a proprietary estoppel claim arising out of an oral agreement for the sale and purchase of land. The LPMPA formalities requirement was not satisfied.

The claimant relied on proprietary estoppel not to enforce the contract but to recover financial losses arising from the failure to enter into the contract. The oral contract, and the price payable under it, arose from an attempt to settle a separate commercial dispute.

The seller’s failure to go ahead with the transaction meant that her indebtedness arising from that dispute continued and that the buyer incurred wasted legal fees.

The proprietary estoppel claim succeeded. The judge, Hugh Sims KC sitting as a Deputy Judge of the High Court, took approach (2): proprietary estoppel was not being used to enforce a contract but to prevent unconscionability ([137]).

It seems, however, that he thought that this would have been a problem if the claimant had sought enforcement of the contract ([139]). As hinted above (point 5 in the previous section) I doubt the logic of this.

The relief granted was:

1. Recovery of the deposits paid to the seller; and
2. Reimbursement of the legal costs related to the aborted transaction (but not those incurred in relation to the broader commercial dispute).

The purchaser’s claim for relief in respect of the difference between the purchase price and the market value of the property failed because, on the facts of the case, it would have given the claimant more than he bargained for ([144]).

Michael Lower

Proprietary estoppel and oral land contracts: the last word?

Howe v Gossop ([2021] EWHC 637) addressed the question as to whether proprietary estoppel can be relied upon where the claim arises out of an oral agreement concerning land.

The problem is that such an agreement is only enforceable if the formalities requirements in section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 have been satisfied. There are concerns as to whether it would be legitimate to allow oral land agreements to be the basis of a successful proprietary estoppel claim. In that case, proprietary estoppel appears to undermine the formalities rules.

In Howe v Gossop, the court resolved this conundrum with the proposition that proprietary estoppel claims can arise out of oral agreements concerning land so long as the relief sought does not amount to the enforcement of the oral agreement.

Facts

Mr and Mrs Howe sold land and buildings near their farm to Mrs Gossop. The terms of the transfer required Mr and Mrs Howe to pay GBP7,000 to Mrs Gossop for road resurfacing work carried out at Mrs Gossop’s expense.

Mr and Mrs Howe and Mr and Mrs Gossop subsequently orally agreed that the Howes would transfer two parcels of land (the ‘Green land’ and the ‘Grey land’) to the Gossops in return for a waiver of the obligation to pay GBP 7,000.

The Gossops carried out work on the Green land and the Grey land. Then relations between the parties broke down. The Howes brought proceedings to recover possession of the Green land and the Grey land.

The Gossops relied on proprietary estoppel in their defence, seeking a declaration that they were entitled to an irrevocable licence to occupy and use the land. They only raised this defence in relation to the Green land because the parties had not clearly delineated the Grey land. The defence succeeded in the court below.

Appeal

The Howes argued that a proprietary estoppel claim could not succeed because the agreement was not in writing as required by section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. They argued that a claim based on an oral land contract could only succeed in exceptional circumstances (relying on passages in the House of Lords decision Cobbe v Yeoman’s Rowe Management Ltd and the Court of Appeal decision in Herbert v Doyle).

Decision

Snowden J. rejected the appeal. There was no requirement that the case be exceptional before proprietary estoppel can be relied on ([65]).

He distinguished cases in which proprietary estoppel was being used, in effect, to secure specific performance of an oral contract from cases where proprietary estoppel was being used as a defence to an action for possession.

The Gossops sought an irrevocable licence rather than specific performance of the contract and so there was no clash with the formalities requirements for land contracts ([50] and [53]).

Nor did it matter that the parties attempted to arrange for the agreement to be embodied in a written contract ([79]).

Snowden J. does not appear to rule out entirely the use of proprietary estoppel to enforce an oral land agreement but this would only be possible where there was some additional (unspecified) factor:

‘if a claimant is seeking relief that amounts to enforcement of a non-compliant contract, he needs to point to something else as the basis for an estoppel based on unconscionability.’ ([66])

Kinane v Mackie-Conteh ([2005] EWCA Civ. 45) is given as an example. In these cases, ‘some additional representation or conduct by the defendant’ is needed ([70]).

The fairness of the decision

Snowden J. pointed out that the Howes could not complain of being unfairly treated; the Gossops waived the GBP7,000 debt and got only equitable relief in return ([76]).

Michael Lower

England: oral agreements and the common intention constructive trust

In Matchmove Ltd v Dowding ([2016] EWCA Civ 1233, CA (Eng)) Matchmove (a company controlled by F, a property developer) was negotiating for the purchase of a plot of land (‘the land’) and the adjoining meadow. F intended to split the land into two plots and to build a house on each plot. He orally agreed with his friend D that D would buy one of the plots and the meadow (D wanted to keep horses on the meadow).

In due course, Matchmove entered into a written contract for the sale of the plot to D and this sale was completed. There was, however, no written contract for the sale of the meadow to D. F and D fell out and F sought to resile from the oral agreement to sell the meadow to D.

D sought a declaration that Matchmove held the meadow on trust for him. Matchmove denied the existence of a binding agreement for the sale of the meadow. It relied on the lack of a signed written agreement to satisfy section 2(1) of the Law of Property (Miscellaneous Provisions) Act 1989.

F had intended the oral agreement concerning the meadow to be immediately binding. He was well known by D to have a business approach that attached real importance to his word as a businessman. By the time of the dispute, D had paid the entire purchase price for the meadow to Matchmove.

In these circumstances, the question was whether the agreement gave rise to a common intention constructive trust that could fall within section 2(5) of the Law of Property (Miscellaneous Provisions) Act 1989.

The Court of Appeal referred to Arden LJ’s discussion of this question in Herbert v Doyle. There, Arden LJ said that section 2(5) could  not be relied on:  (1) if the parties intend to make a formal agreement setting out the terms on which one or more of the parties is to acquire an interest in property; (2) if further terms for that acquisition remain to be agreed between them so that the interest in property is not clearly identified; and (3) if the parties do not expect their agreement to be immediately binding.

The Court of Appeal did not see this statement as setting out three conditions to be satisfied but as being three ways of making the same point about the effect of the judgment in Cobbe v Yeoman’s Row ([32]).

There was a clear express agreement between the parties. Although both parties were well aware that a written contract would be needed, they regarded this as a technicality and took the view that they already had a binding agreement. The payments made by D provided the detrimental reliance.

There was a common intention constructive trust that fell within section 2(5). D could enforce the oral agreement for the purchase of the meadow.

Michael Lower

 

 

Resulting or express trust?

In Ng Tak Kau v Cheung Man Kwai ([2015] HKEC 1942, CFI) title to the family home was conveyed into the names of a father and son as joint tenants. When the son ran into financial difficulties, the son assigned his interest in the property to the father. The son’s major creditor argued that this assignment was voidable under section 60 of the Conveyancing and Property Ordinance (on the basis that it as entered into with the intent to defraud creditors).

The first question that the court had to consider was whether the father was the sole beneficial owner. The evidence showed clearly that he had provided the entire purchase price and that, although the presumption of advancement arose, there was no intention to make a gift to the son. There was clear evidence of an agreement (reached with the concurrence of other family members) that the son’s name was on the title purely with a view to ‘easy administration of family assets’ in the event of the father’s death ([19]). Thus, the son had no share and the transaction was merely the exercise of the father’s rights as sole beneficial owner. The creditor’s claim failed. There was no question of estoppel since the creditor did not rely on any belief as to the son’s ownership when making the loan to the son.

It is perhaps surprising that the conclusion was that there was an express trust in favour of the father ([40]) given the lack of writing to evidence the trust (as required by section 5(1) of the Conveyancing and Property Ordinance). The analysis had been couched in resulting trust terms and could easily have been thought of as a common intention constructive trust.

Michael Lower

The common intention constructive trust is an express trust

In Yip Yuk Kwong v Yip Chun Yin ([2015] HKEC 1312) title to property was in the names of a mother and son but (along with the father) the common intention was that the parents were the beneficial owners. The son’s name was on the title only because he was a solicitor and the firm that employed him would do the conveyancing at a concessionary rate if he were one of the buyers. The father made all the mortgage payments. The son became bankrupt in 1998 and he immediately asserted that he was only a trustee of the property. The court was satisfied that the common intention existed. It might have been better had there been a written declaration of trust but the purpose of the common intention constructive trust is precisely to allow the failure to comply with this formality to be overlooked ([18] per Deputy Judge Saunders).

Michael Lower

Agreement to transfer beneficial interest: proprietary estoppel as a way of circumventing a failure to satisfy the formalities

In Sum Fan Hung v Chum Mei Diu ([2015] HKEC 1100, CFI) the plaintiff and the defendant were sisters. The plaintiff bought a flat in 1997. Title was in the defendant’s name but there was no dispute that the property was held on trust (presumably a common intention constructive trust) for the plaintiff. In 2000, the plaintiff found she could no longer meet the mortgage payments. She orally agreed with the defendant that the defendant was to become the sole legal and beneficial owner of the property. In return, the defendant would take on all liabilities relating to the property without any right of recourse to the plaintiff.  This agreement was not recorded in writing signed by the plaintiff. This was a problem since section 5(1)(a) of the Conveyancing and Property Ordinance requires assignments of equitable interests in land to be in writing and signed by the assignor or an authorized agent. This problem was circumvented by dealing with it as a proprietary estoppel case. The agreement provided the assurance and the plaintiff’s later payments (of mortgage payments and so on) provided the detrimental reliance. The court declared that the defendant became the sole legal and beneficial owner from the time of the agreement. Proprietary estoppel circumvented the failure to satisfy the formality requirements.

Michael Lower

Signature requirement satisfied where written document intended to have contractual effect

In Leeman v Stocks ([1951] Ch 941) property was sold at auction. The auctioneer got the purchaser to sign a contract. He then reported to the seller on what had happened and the seller did not object. The contract was not signed by or on behalf of the seller. The wording of the printed contract ended with the words ‘As witness the hands of the parties’ and so seemed to envisage hand-written signatures. The seller later refused to proceed and the buyer sought specific performance.

The purchaser succeeded despite the lack of the seller’s signature. It was enough that the written contract was clearly regarded as the authorised and formal embodiment of the parties’ contractually binding intention and that the seller’s name was written in the contract. By requiring the purchaser to sign the contract, the auctioneer (as agent of the seller) was recognizing the name of the seller written in the contract as the seller’s signature.

While the contract seemed to require the parties’ hand-written signatures, this did not matter where there was evidence to show that neither party actually contemplated that there would be such a signature.

Michael Lower

No hand-written signature to contract where a signature is clearly anticipated

In Hubert v Treherne ((1842) 3 Man & G 743, 133 ER 1338) the parties entered into a contract that had to comply with the Statute of Frauds (and so had to be signed by them or on their behalf). The parties were identified by name at the beginning of the written contract. The contract ended with the words, ‘As witness the hands’ but no signature followed.

The court held that there was no signature. The problem was that the closing words (‘as witness the hands’) indicated that the parties intended to add hand-written signatures. The lack of such signatures was therefore fatal.

There was a difference of opinion as to whether the outcome would have been the same had those words (‘as witness..’) not appeared. Would it be enough that the names of the parties appeared in the body of the contract? At least two of the judges thought that this would be enough if it was clear that the written contract was a proper and authorised version of a concluded agreement. Another thought that this would not be enough since this degree of tolerance would effectively write the signature requirement out of existence.

Michael Lower

Section 2 Law of Property (Miscellaneous Provisions) Act 1989: oral supplemental term

In Keay v Morris Homes (West Midlands) Ltd ([2012] EWCA Civ 900, CA (Eng)) K entered into an agreement for the sale of land and the leaseback of part. MHL was to carry out building works on the part leased back. The agreement was later varied when a price reduction was agreed. The original agreement complied with section 2(1) of the Law of Property (Miscellaneous Provisions) Act 1989 and the supplemental agreement seemed also to do so. K alleged that a further term had been orally agreed at the time of the variation. The alleged term required MHL to proceed promptly with the building works. K was seeking damages for breach of this term.

This appeal concerned a preliminary point as to whether this term needed to be incorporated in the supplemental agreement (whether it needed to be part of an agreement that complied with section 2(1)). Rimer L.J. said that this was a question of fact. The question was whether the alleged term was part of the varied agreement for the sale and leaseback or whether it was a truly separate contract ([32]). This would need to be decided at trial. If it was part of the variation then the variation (and this term) were void for want of compliance with section 2(1).

In fact, the sale and leaseback were completed. K argued that once all the land elements of the sale and leaseback were complete any outstanding terms were valid contractual obligations even if the agreement had been void for failure to comply with section 2. This was rejected. If the alleged term was part of the supplemental agreement then the agreement was void and the fact that some terms of the void agreement had in fact been performed did not mean that any outstanding terms became valid ([47]).

Incorporation of an unincorporated association: who owned the association’s property?

In Chap Yick Clansman’s Association Ltd v Mok Fai ([1997] HKLRD 580, HC) the property of an unincorporated association was held by four trustees on trust for the members for the time being of the association. A company was incorporated to take over as the vehicle for the running of the association and all members of the unincorporated association at the time of incorporation were automatically members of the company. There was never any formal assignment by the members of their beneficial interests in the property to the company (as required by section 5(1) of the Conveyancing and Property Ordinance). Twenty years after incorporation, the company became one of the trustees of the property. The question was whether the beneficial ownership of the property had passed to the company or remained with the members immediately prior to incorporation.

The court held that ownership had passed to the company. There had been a novation of the terms of the contract between the members of the unincorporated association when they approved the company’s constitution. This conclusion was reinforced by the fact that the company had been treated as owner of the property for a twenty year period from the date of incorporation to its appointment as trustee. In any event, any member of the unincorporated association would now be estopped from asserting a beneficial claim to the property.