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Jean-Yves Gilg

Editor, Solicitors Journal

Proprietary estoppel is experiencing something of a revival

Proprietary estoppel is experiencing something of a revival


David Kirwan ponders the reasons behind a recent increase in proprietary estoppel cases

Since the dawn of time, promises over property have sparked the bitterest familial feuds in history. As those of us in the legal profession witness first-hand, these passionate disputes haven't diminished in intensity.

As a firm with experience in
the agricultural industry, our expertise is often called upon to resolve property disputes over family farms.

A recent case of mine, where we successfully reached a favourable settlement against
a claim of proprietary estoppel and helped my client retain ownership of their farm in a bitter family dispute, has caused me to ponder the reasons behind an increase in similar cases.

This rather old-fashioned Victorian law, which feels like it could sit more comfortably in the pages of the Old Testament, is experiencing something of a revival. One of the obvious factors contributing to this rise is the burgeoning value of agricultural land - average prices have risen by around 270 per cent in the last ten years, and prices are continuing to rise.

Although it assuredly plays a valuable role in securing justice in some instances, complex, drawn-out estoppel cases often have a devastating impact on families, tearing them apart and really leaving no clear winners.

Judgments have historically tended to fall in favour of the claimant, who is, more often than not, a family member seeking redress in the form of property for work they have completed with the expectation of receiving land as an inheritance.

Often, the morally subjective and emotive nature of estoppel can be difficult for defendants to counter. This is particularly true for our clients in the agricultural community, where farm ownership is intertwined so closely with personal and familial feelings of pride, legacy, and rightful inheritance.

The romantic notion of a hard done by, Cinderella-esque character being ill-used and taken advantage of by wicked family members and forced to labour without recompense (Davies v Davies [2014] EWCA Civ 568) is an image that has been firmly ingrained on our psyches since childhood, and is difficult to shake. As a society, we're also naturally hardwired to take the side of the underdog - which can only serve to further the claimant's cause.

As this tide of cases rises,
I am becoming increasingly concerned at the number of farmers who do not have clear, watertight succession plans in place. Helping our clients to take a step back, remove emotional ties, and see their farms and agricultural land for the very valuable businesses that they are is key to helping to avoid complex, long-running, expensive disputes. Farmers need to ensure they have plans in place with regard to their wills and inheritance planning to protect their assets and make sure their children and families are adequately provided for.

Solicitors with agricultural practices or with strong rural ties should also be working closely with rural accountants and tax advisers, who understand and empathise
with the cultural and practical elements involved in agricultural life.

During the succession planning process, especially in the agricultural industry, solicitors also have a key role to play in encouraging clear and open lines of communication between family members to prevent future rifts and to ensure a positive process. SJ

David Kirwan is senior partner at Kirwans