Charlotte Sanders, Assistant Solicitor, VardagsBeatrice Carro, Trainee, Vardags
The recent court of appeal case of Southwell v Blackburn  EWCA Civ 1347
has been heralded by the media as a landmark ruling, whose
result ‘could open the floodgates'. In fact, it is more apt to say that the
case merely adopted the less original Victorian doctrine of proprietary
estoppel. Indeed, the old doctrine of proprietary estoppel is still used
to deal with a modern issue: cohabitation. This is a particularly hot topic as
Parliament looks to pass the Cohabitation Rights Bill to protect cohabitees,
who have long been relying on this grey area of the law and now seek a more
reliable and certain alternative.
short, proprietary estoppel arises most commonly when the owner of a property
causes another to act to his/her detriment in the belief that he/she will
obtain an interest in the property. Three main factors must be established, as
clarified in the case of Thorner v Major
1. There must have been an assurance, representation or
expectation that the claimant has or will have rights in the landowner’s land.
can be active or may amount to passive acquiescence to an assumption held by
the claimant, as long as the landowner intends the claimant to rely on it. The
representation does not need to be made in the precise terms of a specific
proprietary right, but there must be sufficient certainty as to some sort of
entitlement on the part of the claimant.
2. The claimant must suffer
expenditure or a quantifiable financial loss may count as suffering detriment.
For example, carrying out improvements to a landowner’s property.
3. The detriment must be
suffered in reliance on the
claimant would have suffered the detriment anyway, there can be no estoppel.
The case of Wayling v Jones (1993) 69 P&CR 170 affirms
that there must be a sufficient link between the assurance relied on and the
conduct that causes the detriment.
addition to the above three factors, a feature that permeates throughout, and
it must be noted that these factors are intertwined and not disparate in any
event, is unconscionability
cannot take advantage of the other and deny him/her of the right they expected
these factors are established, the burden of proof shifts to the defendant to
demonstrate that the claimant did not rely on the assurances (Coombes v Smith  1 FLR 352
Southwell v Blackburn  EWCA Civ 1347 – Facts
case involved an unmarried couple; Miss Blackburn was 40 and had two daughters
aged 11 and 12, and Mr Southwell who was 41. They decided to move in together
in 2002. Miss Blackburn helped select the property, but Mr Southwell bought the
house in his sole name, with a mortgage of approximately £100,000 and equity of
approximately £140,000 from his previous home. When the relationship broke down
in 2012, Mr Southwell changed the locks at the property. Miss Blackburn applied
to the court for an equal share of the property.
Blackburn asserted that the couple intended to purchase the house together and
that she would be an equal owner. Miss Blackburn’s understanding was that the
property would later be transferred into joint names. Mr Southwell denied this;
he argued he had simply agreed to provide Miss Blackburn with a home for as
long as their relationship would last.
First Instance Decision
The first instance judge,
HH Judge Pearce-Higgins QC, rejected Miss Blackburn’s claim to be a beneficiary
of a constructive trust, as there was no evidence of a clear promise that she
would become an equal owner of the property.
The judge did, however, uphold her alternative claim of proprietary
estoppel, because Mr Southwell had assured Miss Blackburn that she would have a
secure home and she had given up her own accommodation in reliance on that
The judge valued her claim
at £28,500 (calculated by looking at what Miss Blackburn had lost financially
and adding inflation) and ordered Mr Southwell to pay her this sum to put her
back in the position she was in before she gave up her house to live with him.
Mr Southwell appealed.