THE SCOPE OF PROPRIETARY ESTOPPEL

Thorner v Major [2009] UKHL 18, [2009] 1 WLR 776

The House of Lords in Thorner v Major [2009] UKHL 18, [2009] 1 WLR 776 affirmed that proprietary estoppel continues to have a role to play in the creation of proprietary rights in land. Contrary to the views of some commentators, proprietary estoppel was not virtually extinguished by the decision of the House of Lords in Cobbe v Yeoman’s Row Management Ltd [2008] 1 WLR 1752 (on which see our October 2008 issue, pp. 1–4). Two principal issues were decided by the House of Lords in Thorner . The first was that, when deciding whether or not a representation is sufficiently clear to give rise to an estoppel, a court must have regard to the context in which it was made. Second, the assurance must relate to identified property. Here the House of Lords took a relatively relaxed approach. But it did so in the context of a relationship between the parties that was ‘familial and personal’. Where, as in Cobbe, the relationship between the parties is an arm’s length commercial relationship, the court may expect the parties to resolve uncertainties by drawing up a contract under which the interest to be acquired is defined and may be less willing to invoke proprietary estoppel when the parties have not themselves sought to reduce the uncertainties in relation to the interest to be acquired.