interest in land can come through estoppel.
classic statement is the dissenting judgement by lord kingdown on element s of estoppel.
Thorner v Major 2009 – the judgement here is about it. lord scott. a right can be flexible and avoid formalities. balance is needed between certainty and justice.
people should not be able to get out of their promise but we must look after those adversely affected by this promise
this lead to the creation and enforcement of constructive trusts.
lord bridge in lloyds bank v rosset 1991.
if a lender who lent in good faith is bound by equitable interests over property then a proper balance needs to be struck
it may be right to protect the interests of the promisee gillet v holt 2001. In Cobbe v Yeoman’s Row Management there was a different view – limits to the principle of protecting the promisee were breached. I.e. the promisee gained’\ in the Cobbe case
that was 2008
the judge said a court will not enforce informal agreements between businesses. lord scott. law sets out clearly the need of certainty in contracts. contracts in relation to land law. Law of property miscellaneous provisons acts
giving effect to the intentions of the parties . they had ample scope to do so within the law.
2009. thorner v majors is different the farm labourer was less likely to have legal advice.
equity is flexible. there is a gloss on common law
scott v south pacific mortgage ltd 2014. this shows how it operates in practice. estoppel will not protect all when it appears fair to do so.
there is also fairness in consistency and sticking to legislation
LRA sets out properties in land
1. if a registrable disposition in registered land is made for valuable consideration then completion of the disposition by registration has the effect of postponing to the interest under the disposition any interest affecting the disposition immediately before the disposition whose priority is not protected at the time of the registration.
2…for the purposes of subsection 1 the priority of interest is protected
if in any case the interest
i. is a registered charge or is the subject of a notice in the register
ii. falls within any of the paragraphs f schedule 3.
para 3 protects those in actual occupation at the time of disposition. You need to establish that this person had an interest in the land and that it existed at the time of the disposition and that the person claiming it was in actual occupation at the time of the disposition.
abbey national v cann 1991.
mrs scott was an old woman who wieshed to raise money for her dotage. she tried to selll her house. no luck. mr foster approached her to buy her house for a reduced price and then rent it back to her at a reducted rent. foster said she would be alowed to live there as long as she liked. sale 12 august 2005. registerd sept 2005. lenders chagre was also registered
16 aiagust 2005 mrs scott was granted a lease and a promise she could stay.. these have the classic elements of estoppel as in majors v thorner 2009.
promise , reliance to one;s detriment.
the purchaser was a nominee of mr foster mrs williams. she agreed a mortgage with SPM.
there was no mention of the promise to mrs scott.
the promise that mrss scott could stay was confirmed in writing.mr forster arranged the transaction.
Mrs scott was not aware of the mortgage, the borrower defaulted and the lender wanted the house back.
was the mortgagee bound by mrs scott’s interest? she was in acutal occupation linklending v busteed 2011
that was under contract for sale. she retained freehold title until transfer. at that point the contract for sale required her to make it vacant.
until sale the purchaser could not make a promise about right to possess.
a promise made before purchase was not in relation to his struct legal rights
crabb v arun dc 1976
mrs scott argued she had an additional equitable right. this was dismissed
she had a mere personal right. the scuraial thing for schedule 3 para 2 is that the right is not merely personal but is proprietary
strand securities v caswell.
in the gap between sale and completion the occupier can stay on the understanding that he vacates on completion – rready for transfer
at completion the purchase money is paid and using borrow money the the freehold was transferred and legal charge completed
at this pint the vendor obtains and equitable property interest
so the interest does not exist immediately before the grant of the charge
lord collins said it is v important to protect property transfers other judges agreed
mrs scott had been the victim of fraud. her remedy would be against solicitors. they may have participated in the fraud t
the innocent lender needed to certain that his registered charge took priority over an informal promise.