Ben McFarlane, The Law of Proprietary Estoppel
| Author | |
| Pages | 118-119 |
| Date | 01 January 2016 |
| Published date | 01 January 2016 |
| DOI | 10.3366/elr.2016.0336 |
For this reviewer, who studied Scots law but is at present practising in England, areas of English law that are completely different to Scots law are of particular intrigue and interest. The “law of proprietary estoppel” is one such area (or, at least, parts of it are).
Ben McFarlane has produced an impressively detailed text, obviously the product of meticulous research. A key aim of McFarlane's analysis is to make good the proposition that the “law of proprietary estoppel” is comprised of three different strands: (1) an acquiescence-based strand – the classic example of which is where a taciturn landowner stands silently by while his neighbour builds on his land, believing it, incorrectly, to be the neighbour's own; (2) a representation-based strand – where A makes a representation to B on which B relies and B would suffer detriment if A were later free to deny the truth of the representation; and (3) a promise-based strand, in which, for example, Mabel promises Bill that Bill has or will acquire a right in relation to Mabel's property and Bill reasonably relies on that promise (for example, by continuing to care for Mabel in her old age and passing up some other lucrative opportunity).
In his aim of setting out these three strands, McFarlane succeeds. One question, however, as McFarlane acknowledges (15), is whether if these three strands are distinct, the label “proprietary estoppel” serves a useful purpose when applied to them all. McFarlane defends the utility of analysing the three together. At the same time, he scrupulously maintains their separate status and identifies where each strand's requirements differ from the others. As an analysis of different strands, the text is impressive. This reviewer confesses, however, that he was not entirely convinced of the utility of the holistic analysis. Acquiescence is not confined to cases involving property rights. Nor, obviously, is estoppel by representation. In English law, at least, the promise-based strand is currently confined to promises relating to property: see, e.g,
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