Straight through Certainty and Out the Other Side: Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 and Proprietary Estoppel
| Author | Charlotte Groom |
| Pages | 105-110 |
S.S.L.R. Law of Property Act 1989 and Proprietary Estoppel
105
Vol. 1
Straight through Certainty and Out the Other Side:
Section 2 of the Law of Property (Miscellaneous
Provisions) Act 1989 and Proprietary Estoppel
Charlotte Groom
In the quest for certainty in the disposition and transferral of interests in land,
Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 utilises
formality at the expense of a wider sense of just and equitable ownership.
Preoccupation with the ambiguity equitable doctrine brought to the former
legislative framework prompted the ruthless exorcize of what many consider
one of equity‟s most effective mitigating devices; one most suited to
application in this area where equity‟s intervention remains sought after to
soften the sharp edges of the ruthless formalities of the common law. The
question remains whether Proprietary Estoppel is still able to answer such
calls despite its deliberate exclusion from the Act of 89.
Introduction
rior t o its publication, Section 2 of the Law of Property (Miscellaneous
Provisions) Act 1989
1 sent waves of anticipation through the legal
community2. Having replaced Section 40 of the Law of Pr operty Act
1925,3 its central philosophy of formalisation represented an entirely new
approach to the sale and transferral of legal and equit able interests in land.4
Many welcomed the development as a long needed departure from the
uncertainties created under conflicting interpretation of the old legislation.5
Despite its notorious uncertainty, some bemoaned the loss of the doctrine of
part performance and questioned how equity would find its way into
mitigating the potential harshness of the new legislation.6
1 Law of Property (Miscellaneous Provisions) Act 1989 s 2 (henceforth “section 2”)
2 Coughlan, Bentley „Informal dealings with land after section 2‟ [1990] 10 LS 325
3s 40 Law of Pr oper ty Act 1925
4 Law Com mission Formalities for contracts for sale etc. of land (Law Com Worki ng Paper
No 92, 1985), Law Commission „Formalities for contracts for sale etc. of land ‟ (Law Com No
164 1987)
5 Annand, „The Law of Property (M iscellaneous Provisions) Act 1989‟ [1989] 105(Oct) LQR
553-560
6 Ger wyn Griffit hs, „Part performance - still trying to replace the irreplaceable?‟ [2002] 3 Conv
216-236
P
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