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TOTAL WORD COUNT:2146

LAND LAW EXAM

TOTAL WORD COUNT:

SECTION A WORD COUNT: 1178 SECTION B WORD COUNT:

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SECTION A

QUESTION 1: Critically analyse the principles relating to satisfaction of the equity in the law of proprietary estoppel.

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Introduction

When satisfying the equity in Proprietary Estoppel, this can either be done by an expectationbased approach or a compensation-based approach. ‘The greatest remedy available is the complete satisfaction of the expectation’1, however this isn’t always possible so judges must use their discretion to consider proportionality and provide the most suitable compensation. How should this discretion should be used? Gardner argues that starting at expectation to focus on unconscionability creates the fairest outcome2, whilst Bright and McFarlane argue a larger consideration of reliance and detriment creates a better understanding of proportionality3 within the satisfaction of the equity. Courts and academics have struggled to reconcile how principled the satisfaction should be, and moreover how judgmental discretion should be used.

Using ‘wide judgmental discretion’4-unconscionability

In Jennings v Rice, it was said ‘if expectations are uncertain or extravagant or out of proportion to the detriment the claimant has suffered the court should recognize the equity should be satisfied in another, and more limited way’5. Effectively it’s an expectation-as-astarting-point approach- give effect to the expectation until it is disproportionate to do so. Then, judgmental discretion must be used to find the ‘best’ satisfaction of equity that is proportionable to the detriment, but must be ‘fair’ and avoid unconscionability.

1 Macclesfield v Parker [2003] EWCH 1846 2 'The Remedial Discretion in Proprietary Estoppel - Again' (2006) LQR, 122, 492 3 The Death of Proprietary Estoppel 4 n (2) 5 [2002] EWCA Civ 159

TOTAL WORD COUNT:2146 This wider, holistic6 approach is necessary according to Gardner and Dixon, since cases cannot be split simply into ‘bargain and non-bargain categories’ as Jennings implies7. It is not as binary as bargain cases having a clear remedy of expectation, whilst non-bargain cases simply require discretion; many fall between these categories and even categorising them itself involves discretion, therefore this must always be a factor. Finding a remedy somewhere between the reliance and expectation interests when they differ is not always easy as they are not always quantifiable, therefore Gardner stresses the outcome must be considered, not only the expectation and reliance.

The ‘best’ outcome, Gardner recognised, could be anywhere between the claimant’s detriment and the expectation, therefore ‘wide judgmental discretion’ should be used with the aim to avoid unconscionability, as supported by Gillet v Holt8 and Taylor Fashions Ltd9 (as opposed to focusing on proportionality). ‘A morally fair remedy balances both the claimant’s expectation and reliance, with what is ascribable to the defendant.’ 10 This is consistent with the reasoning in Suggitt v Suggitt which said the need for proportionality ‘does not mean there has to be a relationship of proportionality between the level of detriment and the relief rewarded.’11, supporting the expectation-as-a-starting-point approach, recognizing that unconscionability is a key principle that cannot be ignored, and wide judgmental discretion should be used to do this.

However there is an inconsistency in Jennings, saying a ‘principled approach ‘is needed to reconcile unconscionability with proportionality, yet saying ‘broad’ discretion should be used.

6 Dixon, M 'Proprietary Estoppel A Return to Principle Conv (2009), 261. 7 n (2) 8 [2000] EWCA Civ 66 9 v Liverpool Victoria Trustees Co Ltd [1982] QB 133) 10 n (2) 11 [2012] EWC Civ 1140

TOTAL WORD COUNT:2146 Gardner recognises that currently, “discretion cannot be sufficiently reconciled with the Rule of Law: it involves an unacceptable degree of rule by men (the individual judges), not laws” however says that it is possible to fix this with greater transparency12. Dixon similarly says a more principled approach is needed to provide a framework for how PE should operate, but offers no explanation for what this should be.

A narrower ‘principled’ discretion- proportionality

Davies v Davies13 raised the question of whether the purpose of discretion is to give effect to the claimant’s expectation until it is disproportionate to do so (as Jennings and Gardner argue), or if it’s to protect the reliance interest of the claimant so they’re compensated for the detriment they have suffered.

Bright and McFarlane call for a more principled approach so its clearer how to weigh proportionality14, involving giving more weight to reliance and detriment. Unlike Gardner’s expectation-as-a-starting-point approach, Bright and McFarlane say there is no good reason not to recognise the need to protect the reliance of the claimant directly15, PE isn’t doing this right now and this is an issue. Robertson supports this saying ‘the defendant’s liability is determined by the need to prevent the claimant suffering a detriment’16. Mee observes that the expectation-as-a-starting-point approach can only go so far before the disproportionality, even in the remedy, becomes ‘absurd’. He calls for a greater focus on detriment as well as expectation17. 12 N (2) 13 [2016] EWCA Civ 463 14 ‘Proprietary Estoppel and Property Rights’ [2005] CLJ 449 15 N (3) 16 “The Reliance Basis of Proprietary Estoppel Remedies’ [2008], Conv 295 17 The Role of Expectation in the Determination of Proprietary Estoppel Remedies’, Modern Studies in Property Law, Vol 5, ed Dixon 2009, 402-04

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Lord Neuberger in ‘The Stuffing of Minerva’s Owl’18 provided an explanation for why the focus on unconscionability would be unsuccessful, using Muschinski v Dodds19: “proprietary rights fall to be governed by principles of law and not by some mix of judicial discretion, subjective views about which party ‘ought to win’ and ‘the formless void’ of individual moral opinion”, effectively saying proportionality is more important. Neuberger went onto say that “There is no reason to think that an estoppel claim should necessarily extend to some sort of moral right, which is unenforceable in law”. Neuberger effectively supported the Death of Proprietary Estoppel and said the courts should go back to original cases like Dann v. Spurrier, Ramsden v. Dyson and Rochdale Canal Co v. King, where the focus was on legal entitlement not the moral debate. The courts should create a more principled approach to discretion that focuses on proportionality and legal entitlement, not be using discretion as a ‘portable palm tree’20 to make moral decisions, this is not the role of a judge.

However, unconscionability cannot be ignored altogether. Ottey v Grundy21 highlights the purpose of PE isn’t to effectively reverse the claimant’s detriment they have suffered or enforce an obligation that isn’t a contract, but to ‘grant an appropriate remedy in respect of the unconscionable conduct’. So how then can we best reconcile both proportionality and unconscionability through discretion?

Conclusion

18 C.L.J 68(3), 2009, 537 19 [2008] 1. W.L.R. 1752 20 Taylor v Dickens [1998] 1 F. L. R. 806 21 [2003] Civ 1176

TOTAL WORD COUNT:2146 Jennings, Davies and the recent case of Moore v Moore22 all reconcile unconscionability in their satisfactions of equity, but equally observe proportionality needs to be considered in a greater, more structured form to recognise reliance. Moore says it is difficult to create a principled structure of discretion because PE cases are so fact specific. Gardner acknowledges that Bright and McFarlane approach unconscionability more complexly, but if it can be reconciled successful with proportionality, is closer to the way the courts act. So perhaps using discretion less widely with a focus on proportionality as well as unconscionability may be the future for proprietary estoppel, if the courts can find a way to do this.

SECTION B: 22 [2018] EWCA Civ 2669

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QUESTION 2: Condolesa bought Pond Cottage in 1996. Pond Cottage is a large country house with an extensive garden and a barn. Condolesa had a swimming pool installed in the gardens of Pond Cottage and had the barn converted into a house.

The drains for the swimming pool run from Pond Cottage, under the barn and onto the main road.

Condolesa initially let out the barn conversion to Donald and Ivana on a yearly tenancy. Condolesa, Donald and Ivana became quite friendly and Condolesa allowed them to use the swimming pool as there were few recreational amenities nearby. Donald and Ivana said they would like to purchase the freehold of the conversion. Condolesa agreed and in 2000 the freehold was registered to Donald and Ivana.

Donald and Ivana continued to use the swimming pool. In 2018 their relationship with Condolesa soured. Condolesa told Donald and Ivana that they could no longer use the swimming pool and suggested they drive to the nearest town to use the gym in future. Donald was quite cross and, in a fit of anger, blocked up the drains to Pond Cottage.

Advise Condolesa as to whether: a) Donald and Ivana have an easement to use the swimming pool; and

b) She can require Donald and Ivana to unblock the drains.

Pool

The case of Re Ellenborough Park [1965] sets out the criteria for the 4 characteristics of an easement. Firstly, there must be a dominant tenement and servient tenement- two identifiable

TOTAL WORD COUNT:2146 pieces of land (as set out by London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992]). There is Condolesa’s property- Pond Cottage and the pool, and Donald and Ivanka’s property- the barn conversion. Secondly the right must accommodate the dominant land. Applying Hill v Tupper [1863] both properties are for personal housing/residential purposes, not a business and are in close geographical nexus under Bailey v Stephens [1862]. Following Re Ellenborough Park, the nature of the right can be said to be recreational enjoyment under Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2017] the recreational/amusement value is an amenity in a domestic setting. Thirdly the dominant and servient land must be owned by different people, which is the case here since both parties own their respective properties freehold. Finally the right must be capable of forming the subject matter of the grant. In considering these one must consider several conditions. The pool is a defined area so following Re Ellenborough Park cannot be said to be too wide or vague. The right doesn’t go against the ouster principle. The right could be considered to be purely recreational under Mounsey v Ismay, however as established in Regency Villas “an easement should not in the modern world be held to be invalid on the ground that it was ‘mere recreation or amusement” so it can still make up the subject matter of the grant. This right is not a negative easement, nor does it require expenditure from Condoles.

In satisfying the formalities, this grant is not an express grant. An express grant has to be written in deed and registration as set out in LPA 1925 s52(1). Therefore, it could be argued the easement is an implied grant. There is no evidence to suggest there was any implied necessity (under Manjand v Drammeh and Sweet v Sommer) or common intention between the owners. Donald and Ivanka could argue they have an easement under Wheeldon and Burrows [1879] because the pool is continuous and apparent as set out in Suffield v Brown

TOTAL WORD COUNT:2146 And Ward v Kirkland and could be considered necessary to the reasonable enjoyment of the land however this rule is usually more applicable to rights enjoyed by the grantor when there is no diversity of occupation. Therefore, they may be more successful in getting an easement under the Law of Property Act 1925 s62, which is intended for the right to be enjoyed by the grantees when there is diversity of occupation, which is the case here. Their case can be supported by Wright v Macadam [1949] had additional benefits in a previous agreement. They could also use Platt v Crouch [2003] where they had had repeated use of the right prior to the souring of their relationship with Condensa. They do not have a prescriptive easement since they have not owned the property as a freehold for 20 years, yet which is what is required by Waterworks.

As an implied grant, the couple can protect their easements under the Land Registration Act 2002 under schedule 3 paragraph 3 since the right exercised with the period of 1 year before the disposition, therefore is protected as an overriding interest. Therefore, Donald and Ivanka do have an easement for the pool.

In terms of remedies, the easiest method may be declatory relief as took place in Regency Villas, just to carry on using the pool. The Shelfer principle could potentially be applied to any damage costs of travelling to other leisure centres for the pools.

Drains

Under Re Ellenborough Park we know from above that there is dominant and servient land. The drainage system accommodates the land as it is necessary to remove waste from the pool and is a benefit otherwise the waste would have no other way to escape. The dominant and

TOTAL WORD COUNT:2146 servient land are owned by different persons as clarified above. In terms of the right forming the subject matter of the grant, the drains are established and are not too wide or vague, nor does it go against the ouster principle. The drains are for the utility to land so are not for recreation or amusement, nor is it a negative easement. The right does not involve expenditure to the servient owner as under Duke of Westminster v Guild, they are ‘not under any obligation … to execute any repairs necessary to ensure the enjoyment of the easement by the dominant owner’.’

The easement cannot be an express easement as it is not in deed or registration as required the LPA 1925 s52(1). It could be an implied grant through necessity due to the rule in Clarke v Cogge. It could also be an implied easement through common intention, as set down by the rule of ventilation in Wong v Beaumont Property Trust, this could similarly be applied to drainage. The easement could not be implied under Wheeldon v Burrows because it is not continuous or apparent as the drains are underground and therefore not easily visible. As said above, the property hasn’t been owned for twenty years so could not be a prescription.

As an implied grant, the easement for the drain can be protected under the Land Registration Act 2002 under schedule 3 paragraph 3 since the drains could be found under reasonable, careful inspection, therefore is protected as an overriding interest. Therefore, Condolesa could require Donald and Ivanka to unblock the drain as they interfered with the use of right, as the rule states in Celsteel Ltd v Alton House Holdings [1985]. The easiest remedy may be an injunction under Shelfer v City of London Electric Lighting Company [1895].

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