QUESTION ONE:
Simon bought the freehold to Witter House in January 2007, and moved in immediately. The neighbouring property, Issac Lodge, was owned by Mark. Both were large properties with extensive gardens. The boundary between Witter House and Issac Lodge was a thick group of trees. It was possible to walk through the trees and go from the garden of one property to the other. These properties were located in the centre of Sunning, a picturesque village in the heart of Berkshire.
In February 2007, shortly after Simon had moved in, Storm Nathaniel, a particularly violent storm, hit Sunning particularly badly, and it uprooted many of the trees between Witter House and Issac Lodge. When they met to discuss the damage, Simon and Mark decided that they should pull up the remaining trees and build a fence between the properties, formally marking out the boundaries between the properties for the first time.
As Mark was about to travel overseas on business for several weeks, it was decided that Simon would build the fence. While Mark was away, Simon built the fence without consulting any plans, placing the fence where he felt the boundary between Witter House and Issac Lodge should be. Once the fence was built, it was no longer possible to go from the garden of either property to the other.
When Mark returned in March 2007, he felt that the fence was in the wrong place, and encroached on to his land. When he bumped into Simon in the village pub, he queried where the fence was placed, but Mark was assured by Simon that he had consulted his plans and the fence was in the correct position. Ultimately, Mark decided not to take this any further, as he felt that the land was not overly important in the grand scheme of things.
In the autumn of 2016, Mark decided to sell Issac Lodge and put it on the market. The property attracted the interest of Kendrick, a local property developer, who specialises in small scale residential property developments. Kendrick viewed the property and inspected the grounds. He felt that the boundary was not “quite right”, but chose to proceed and decided that he would purchase Issac Lodge. Kendrick became the owner of Issac Lodge in January 2017.
Shortly after purchasing the property, Kendrick decided to pursue the issue of the boundary with Witter House. After consulting various plans, and with the help of his solicitor, Kendrick discovers that the fence encroaches onto his land by twenty-five meters. On discovering this, Kendrick instructs one of his builders to remove the fence. Simon, on seeing the builder start to remove the fence, charges out of Witter House with a cricket bat and started yelling at the builder to stop immediately. Simon then turned to Kendrick, and shouted in his face, “you developers are only interested in making money, and will ruin this village. Your sort are not welcome here”.
Kendrick orders his builders to stop, and tells Simon that he has had it confirmed that the fence is on his land and as such he wishes to remove it. Kendrick offers to place the fence where the boundary actually is. Simon’s response was that, ‘it’s on my land, it’s not shifting, you’re only trying to steal my land, I’m going to consult my lawyers’.
Following these events, Kendrick has come to you for advice and is concerned that Simon may have a case for arguing that the land now belongs to him
Advise Kendrick.
QUESTION TWO:
Lord Scott in Cobb v Yeoman’s Row [2008] 1 WLR 1752 at [16] stated that, “[u]nconscionability of conduct may well lead to a remedy but, in my opinion, proprietary estoppel cannot be the route to it unless the ingredients for a proprietary estoppel are present”.
However, Scott LJ in Gillett v Holt [2001] Ch 210 at 225, stated that the need to ‘prevent unconscionable conduct permeates all the elements of [proprietary estoppel]. In the end the court must look at the matter in the round’.
What are the ‘ingredients’ of a successful proprietary estoppel claim, and which view, if either, should be preferred?
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