LICENSES and PROPRIETARY ESTOPPEL

Take Stock: Do you have a proprietary interest?

Not interest in land |
Interest in land

|
|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------|
|
Trespass Bare License Contractu License + Fee
Lessee Mtgage
er licensee w grant al | Proprietary simple
e
licensee
If no lease, what
does promisee
have?
Clue: look for a contract (in particular,
consideration).

Comparing the contractual license and proprietary estoppels

Nature Contract? Binding on promisor? * Binding on 3rd P? Defeat R/P? Areas of overlap?
Contrac Non- Cases - Irrevocable at will - Must go down constructive trust - s 95(2) LTA (i) Contract vs non-contract
tual proprietary usually (Winter Gardens + route express undertaking + - CRTPA + s CL contract but sometimes
license (per involve Tan Hin Leong) discount. (Binions v Evans as 46(2)(b) LTA cannot see any consideration (eg
(CL) Ashburn) some - Can only enforce reinterpreted by Asiburn) Binions)
but agreement according to terms of - Alternative: CRTPA PE not contract but can see
debatable contract - Juridical basis: some taking very bargain-like
unconscionability characteristics
Propriet Equitable No lack - Promisor certainly - Will bind if 3rd P had notice (ER - Torrens fraud (ii) Binding on promisor?
ary proprietary of bound Ives) (Loke Yew CL increasingly more binding bec
Estoppe interest considerati - Ct can enforce equity - Juridical basis: notice route) of specific performance being
l (PE) on as it deems fit - Personal granted
equities?

HISTORICAL DEVELOPMENT + ELEMENTS OF PROPRIETARY ESTOPPEL

The Common Expectation cases The Unilateral Mistake cases

o Lord Kingsdown in Ramsden v Dyson o The Willmott v Barber probanda

o Expectation encouraged by landlord o Volunteer improves land + owner
o Bargain-like estoppels by stands and watch silently

Modern Test: UNCONSCIONABILITY

- Taylor Fashions: wider, unitary test of
unconscionability
- Accepted in Hong Leong v UOB
(2) Representation
- Not separate element by overarching
(3) Unconscionable
o The imperfect gift (1) Change of positionElements (per Hong disadvantage
cases centre Leong)
o The common expectation cases centre o The unilateral mistake
 (1) REPRESENTATION

Source of the representation

Representation too casual? - Need not be made directly from Rtor to Rtee
- Test of reasonableness - but can bind even o But incl anyone to whose notice the rep was intended to come
if Rtor didnt expect it to be taken seriously (Hong Leong v UOB)
- Pascoe v Turner [] arguably casual but - Could be agent of Rtor or Rtee (or even children Greasley v Cooke)
still worked.

(2) Express representation Thorner v Major []

(1) Implied representation
(a) Promise cases the hse and everything in - By conduct or silence
mix of both -
it is yours testamentary + (a) The stand-by-while-someone-
(b) Care of elderly + testamentary promises silence extraordinary improves-your-land cases
facts

Certainty as to
Certainty as to nature and
inevitability of Rtor should have spoken up Rtor must know of the
quantum entitlement - Circumstances must be such thing acquiesced to
- Promise must pertain to some
- Representation must be tt Rtor ought to have - If it is said tt A acquiesced
objectively-ascertainable
clear tt Rtor would not spoken up to B doing X, A must
property right (Lissimore), but no
resile from his promise. (Hong Leong v UOB) know tt B was doing X
need to refer to any specific asset.
Promise of entire estate is Two difficult (Hong Leong v UOB)
areas
(b) Testamentary promises
(a) Subject to contract negotiations - Eng law generally views such promises as inherently revocable.
- In principle agmts = insufficient certainty of inevitability Exception:
- Cannot hold on to unreasonable belief in the hope tt it will be
Gillet v Holt []
recognised
- Rep was repeated (since young) and unambiguous
AG of HK v Humphreys Estate [X]
- Detriment very great 40 yrs of unpaid labour
- Finding of fact tt P knew tt V reserved right to resile + Arms
(2) RELIANCE / CHANGE OF POSITION

What does reliance Acceptable changes of position

establish? - Need not be monetary/ improvement to
Causal link w representation Precedes Some other reason prop.
- Standard = Rep must have influenced the Rtees representation Eg. take care of family (Greasley)
- Lissimore:
conduct - Eg. A helps old Live-in carer (Jennings)
desire to escape
- Qn is whether it was reasonable for rtee to rely
man before he from humdrum Working on farm (Gillet)
How is it makes any But the line btw that above
Exceptio
proven? n: and matters of lifestyle quite
*Burden of proof shifts thin
- Hong Leong v UOB: Representation + capable of causal link Matters of lifestyle
= burden shifts. Eg of - Changes of position tt are purely
o Up to Rtor to show lack of reliance presumption emotional or matters of lifestyle not
- Greasley v Cooke: representation was calculated to being rebutted accepted
influence - Eg. Coombes v Smith [X] married woman
(3) DETRIMENT/ UNCONSCIONABLE DISADVANTAGE runs away to live w lover
 DETRIMENT MUST BE UNCONSCIONABLE
- Standard = shock the conscience of the Ct
(Yeomans Row)
- Not all detriment suffered by rtee will be
If it has been a long
Rtee subsequent
time
conduct
Inchoate equity may fluctuate over time Rtee must come with clean hands
- Time: unconscionability measured at the point tt Rtor - All equitable maxims apply (with the possible exception of equity would not assist a
seeks to resile thus, equity may have been extinguished volunteer PE meant to protect non-purchasers)
or diminished - Hence, Rtees misconduct may bar his claim
o Eng: Sledmore rent-free occupation for 17 years - But his behaviour must be more than general depravity (Hong Leong)
o Sgp: Chiam Heng Luan hotel paid nominal rent o Does Jayaram Victoria contradict? Claim barred lack of frankness + relying on
own tardiness.

Theories of Justice: Unconscionability of outcome or conduct?

- Unconscionability of conduct = morality (hence the clean hands doctrine features)
- Unconscionability of outcome = distributive justice (hence the extinction of inchoate equity)

SATISFYING THE EQUITY

1) PROPORTIONALITY
APPROACH: Max expectation of Rtee ----- compare it with ----- Min equity to satisfy the equity (Gillet v
Guiding Holt)
Principl What, then, is the minimum equity? Expectation interest on one hand; reliance
es: interest on the other
Reliance Expectation
Hong
Interest Interest
Leong v
UOB Non-bargain cases Indistinguishable cases Bargain cases
- Falls short of a concluded bargain - Sometimes the only way to protect - Expectation measure more appropriate
Dealings were relatively short-lived when thr was a consensual expectation.
Rtees reliance interest may be to
Rtees loss readily calculable in $ Rtor repeats rep over many years
give effect to his expectation interest
terms (Gillet)
most commonly in cases whr e
Rtees expectation out of all Rtee undertook substantial change
detriment cannot be $ calculated
proportion to the detriment (as it of position

To sum-up: Money + Time, then whether it is out of all proportion

English judicial sentiment: Reliance loss only when a higher measure would amount to overcompensation (per Walker LJ in Jennings) --- [Aus: only give reliance
loss]
+
2) FLEXIBILITY
- Court has very wide discretion, as evidenced when it grants order on terms.
o Eg. in Crabb v Arun granted Pf a right of access w/o requiring him to make compensatn bec Df had acted with high-handedness for many years.
 o Coombes v Smith: can live in property until child reaches 17 y.o.
EFFECT ON THIRD PARTIES
Conditions for PE
satisfied?
(1) CRTPA route YES
NO
- Always take the statutory route first!
- Rtee will claim tt the contract btw Rtor BUT, if Rtor and 3rd P have a (2) PE + notice
and 3rd P purports to benefit him contract - Main distinction from the other two is tt Rtee has a equitable
(+ve) No need to show discount or proprietary interest and hence its binding on all except a
unconscionability bona fide purchaser of a legal estate for value w/o notice
(3) Constructive trust route
(-ve) Rtee must have been named (+ve) No need for discount notice is sufficient to bind
- The contractual license w equity line of
(-ve) Rtor and 3rd P must have a cases (ER Ives)
contract (+ve) 3rd P is constructive trustee (-ve) Application in Sgp uncertain
- Will bind 3rd P if:
Rtee gets a definite proprietary
o 3rd P only has an equitable interest; or
remedy
Registered o 3rd P takes w notice
land? (-ve) Must prove the grounds for
s 46(2)(b) Registered
Ground 2: Party to a fraud
- Enforce a Ground 1: Express undertaking land?
- Goh Swee Fang v Tiah Juah Kim [94,
contract + Discount
SGCA]
against R/P - As approved in Ashburn Torrens fraud or in personam
Conditions:
who is a party - Binions v Evans approved exception?
- Rtors behaviour was fraudulent +
- Prima facie notice would not
Registered - 3rd P was a party to the fraud [ie. 3rd P defeat title. Would have to show
land?
Registered something more.
Torrens fraud land? - Probably the least likely to
- Loke Yew situation
Torrens fraud
- If R/P is constructive trustee bec he was a party to a
fraud, he will also lose indefeasibility
 Reference Table of Cases (from Zhidas muggers)
CASE REPRESENTATION, DETRIMENT RELIANCE SATISFACTION OF EQUITY
ENCOURAGEMENT OR (must flow from deserted repn!)
ACQUIESCENCE
A. PHYSCIAL IMPROVEMENT CASES (traditional cases)
Crabb v Arun Neighbours: right of access at Sold part of land. Sold land in reliance of Grant of right of access at B
(1976) point B and right of way along Gates at B removed, and fenced, landlocked. representation. and right of way along road.
road. No payment landlocked for
Erecting gates and fences at B. long period.
Taylor Fashion Tenant and landlord: Expended large sum of money on premises (lifts, and Expended money in reliance Renewal of option granted.
(1982) encouraged belief in entitlement take lease of adjourning premises ) of encouragement.
to renew option.
ER Ives Neighbours: acquiesced to right Burden of 1 ft foundation which encroached on land. Reliance on expectation of Mutual benefit and burden.
Investment of way Expended money in building garage only accessible right of way Right of way granted
(1967) by right of way
Commercial Context parties expected to enter into contract
Hong Leong v Developer to contractor: Resumed and continued work Significant factor that Pay difference in value of
UOB Complete construction for one influenced decision to resume property and work done
(2007) floor of development and complete work conveyance of property
Chiam Heng Landlord to hotel tenant: stay Paid property tax and maintained property - Extinguished over 50 years
Luan on the premises for so long as it of low rent
(2007) operated a hotel business;
encouraged by actions of owners
Cobbe v Landlord to developer: Expended sum for planning permission No reliance knowledge that [X]
Yeoman Oral agreement in principle [Ct found sum expended knowing that agreement agreement was not
(2008) Cobbe to apply for planning was not enforceable] enforceable
permission. Upon grant, land will
be sold & profits shared
[Ct: no specific interest in
land, subject to negotiation]
AG v Landlord to developer: Acted in detriment No reliance knowledge of [ X ].
Humphrey s Commercial context; parties [Ct found it was not unconscionable] right to resile
Estate entered into agreement in
(1987) principle subject to contract
B. PERSONAL ASSISTANCE CASES
Oral Testamentary Promises - parties NOT expected to enter into contract
Thorner v Contextual: between 2 men who Substantial work on farm for 30 years without pay Worked in reliance of Granted inheritance of
Major communicated obliquely but assurance that he would agricultural assets (and not
(2009) understood each other. inherit whole estate minimum
Suggestions to settle his estate equity to do justice)
duties and the rest will be his.
Inward v Father to son: why not out the Built bungalow based on own labour and expense. Expended effort and money in Trustee bound by sons equity
Baker bungalow on my land and make Trustee sued for possession. reliance of representation to stay.
(1965) the bungalow a little bigger Allowed to stay as long as he
desires.
Gillett v Holt Old man to schoolboy (25 yrs): Devoted best years of his life working for him, Relied on assurances as he Transfer of freehold for family
(2001) Repeated assurances that he showed loyalty and devotion to his business, social was a man of his words home, $100,000 to keep out of
 would succeed to his farming
business + inherit property
Jennings v Widow to bricklayer: need not
Rice be worried not being paid for
(2003) errands; he would be alright
and she would see to it; this will
all be yours one day
Domestic Context - parties NOT expected to enter into contract
Pascoe v BF to GF: the house and
Turner everything in it was yours;
(1979) encouraged & acquiesced to
improvement
Goh Swee Mother to son: transfer 50%
Fang share to mother and when she
(1994) sold property he would receive
half share
Greasley v Family to maid: various
Cooke representations, led her to
(1980) believe she can stay rent free for
as long as she like
Re Sharpe Nephew to aunt: acquiesced
(1980) and encouraged to spend in order
to stay with him and wife
Sledmore v Mr S to D: wanted to give the
Dalby house to D, encouraged and
(1996) acquiesced the improvements
Lissimore v BF to live-in GF: "I bet you
Downing never thought all of this would be
(2003) yours in a million years, Lady of
the Manor; that he always
looked after his GF
[Ct found insufficient assurance
not related to any specific
property]
Coombes v Cohabitees (married to other
Smith people): would always provide
(1996) for her and have a roof over her
head
life and personal wishes family business
Slept on her sofa every night, looked after her One reason for acceding to Awarded $200,000 as
prescriptions, dress her, toilet, meals and gardening Rs demands belief of reasonable compensation for
benefit from her death services
[Finding: J did not know real
extent of Rs estate]
Expended money on repairs, improvements and Expended effort and money in Grant of fee simple (if licence,
redecorations and furniture reliance of representation cannot register and might be
ousted by equitys darling;
cannot take loan for future
improvements)
Withheld from enforcing legal right to $20,000 for 16 Withheld on reliance of Granted half share of the sale
years; assisted in procuring contractor for promise to share proceeds proceeds
renovations; paid part of the costs
Did house chores without payment; looked after Presumption of reliance Allowed to stay on in the
mentally ill daughter house
Expended $12K for property, and $2K for fittings, Reliance on expectation to Entitled to stay till repayment
paid debts to prevent bankrupt look after her of contribution
Carried out substantial work of improvements on Relied on assurance and Extinguished over 18 years of
house stayed rent free after rent-free stay
daughters death [Ct found Mrs in pressing need
for house vs D was employed
and stayed elsewhere]
No detriment: Gave up job, turned down job offer, No reliance she moved in [X]
bought car with previous divorce settlement sum, for the exciting opportunity
devoted time to maintain and improve estate. and not for the representation
[Ct found she hated her job anyway]
No detriment: giving birth; leaving husband, looking Presumption of reliance [ X ] - (but on terms: provide
after house and child, improving house and not until child reaches 17)
looking for job