[36] In the instant case, there is no doubt that there was an arrangement between the
parties for a house to be built and an assessment of the facts may very well
reveal appropriate consideration. The evidence of the claimant on cross-
examination was however that she contributed towards the construction of the
house out of love and affection for her parents, as she stated that “the
condition they were in, in that leaky house reached her heart”. She
specifically stated that she volunteered to assist as a loving child with deep love
and affection for her parents and that she understood the meaning of
volunteer. Perhaps even more importantly, she was adamant that owning the
house was never in her mind when she commenced assisting them.
[37] It is undisputed that prior to the construction of the house the subject of this
litigation, the defendants lived in a board house that was dilapidated. It is also
unchallenged that some construction material had been purchased long before
2005 when construction commenced. The claimant did not assert that she made
any contribution to the purchase of these initial materials and the 2
nd
defendant
stated that they were purchased by her sons, amongst others. She said that she
was awaiting her sons’ assistance but the claimant approached her first.
[38] The facts therefore seem to support a conclusion that the house was built in a
context where children were moved by the poor living conditions of their parents
and out of love and affection, sought to improve those conditions by undertaking
to build a home. Those circumstances the court finds did not evoke an intention
to create legal relations. Accordingly the presumption of a mere arrangement
inspired and actuated by love and affection has not been rebutted by the
claimant.
I
SSUE
4:
W
HETHER THERE WAS AN ASSURANCE GIVEN BY THE
2
ND
DEFENDANT TO THE
CLAIMANT ON WHICH SHE RELIED AND CONSEQUENTLY ACTED TO HER
DETRIMENT
?
The Doctrine of Proprietary Estoppel
[39] In
Annie Lopez v Dawkins Brown and Glen Brown, [2015] JMCA Civ 6
,
Morrison J.A. (as he then was), stated at paras. 68-73 that:
The modern law of proprietary estoppel is aptly summarised by the
authors of Gray & Gray in this way (at para. 9.2.8): “A successful claim of
proprietary estoppel thus depends, in some form or other, on the
demonstration of three elements:
• representation (or an ‘assurance’ of rights)
• reliance (or a ‘change of position’) and
• unconscionable disadvantage (or ‘detriment’).
An estoppel claim succeeds only if it is inequitable to allow the
representor to overturn the assumptions reasonably created by his earlier
informal dealings in relation to his land. For this purpose the elements of
representation, reliance and disadvantage are inter-dependent and
capable of definition only in terms of each other. A representation is
present only if the representor intended his assurance to be relied upon.
Reliance occurs only if the representee is caused to change her position
to her detriment. Disadvantage ultimately ensues only if the
representation, once relied upon, is unconscionably withdrawn.”
As will be seen, the notion of unconscionability of some kind is central to
this and other formulations of the principle. However, Lord Scott’s
important judgment in Yeoman’s Row Management Ltd and another v
Cobbe, to which Mr Williams referred us, sounds an important caution (at
para. 16) against allowing unconscionability to take on a life of its own:
“My Lords, unconscionability of conduct may well lead to a remedy but, in
my opinion, proprietary estoppel cannot be the route to it unless the
ingredients for a proprietary estoppel are present. These ingredients
should include, in principle, a proprietary claim made by a claimant and
an answer to that claim based on some fact, or some point of mixed fact
and law, that the person against whom the claim is made can be
estopped from asserting. To treat a ‘proprietary estoppel equity’ as
requiring neither a proprietary claim by the claimant nor an estoppel
against the defendant but simply unconscionable behaviour is, in my
respectful opinion, a recipe for confusion.”
Further, Lord Scott continued (at para. 28): “Proprietary estoppel requires,
in my opinion, clarity as to what it is that the object of the estoppel is to be
estopped from denying, or asserting, and clarity as to the interest in the
property in question that that denial, or assertion, would otherwise defeat.
If these requirements are not recognised, proprietary estoppel will lose
contact with its roots and risk becoming unprincipled and therefore
unpredictable, if it has not already become so.”
Attorney-General of Hong Kong and another v Humphreys
Estate(Queen's Gardens) Ltd [1987] 2 All ER 387, to which Mr. Williams
also referred us, also makes it clear that it is important in every case in
which a claim based on proprietary estoppel is made to have regard to
the particular facts of the case. In that case, a written agreement,
expressed to be “subject to contract”, for the purchase of development
property had been signed. The agreement stated that the terms could be
varied or withdrawn and that any agreement was subject to the
documents necessary to give legal effect to the transaction being
executed and registered. It was therefore clear that neither party was for
the time being legally bound. However, the intended purchaser was
permitted to take possession of the property and to spend money on it.
Subsequently, the owners of the property decided to withdraw from the
transaction and gave notice terminating the intended purchaser’s licence
to occupy the property.
The intended purchaser’s claim to the property based on proprietary
estoppel failed because, given the terms of the agreement between the
parties, it had chosen “to begin and elected to continue on terms that
either party might suffer a change of mind and withdraw” (per Lord
Templeman, delivering the judgment of the Privy Council, at page 395).
As Lord Scott later explained (at para. 25) in Yeoman’s
RowManagement Ltd and another v Cobbe, “[t]he reason why, in a
‘subject to contract’ case, a proprietary estoppel cannot ordinarily arise is
that the would-be purchaser's expectation of acquiring an interest in the
property in question is subject to a contingency that is entirely under the
control of the other party to the negotiations...The expectation is therefore
speculative” (see also the earlier case of Gillett v Holt [2001] Ch 210,
228, where Robert Walker LJ described Attorney-General of Hong
Kong v Humphreys Estate (Queen's Gardens) Ltdas “essentially an
example of a purchaser taking the risk, with his eyes open, of going into