Oral agreements: a walk in the park!

14th October 2016

11 Oct 2016: Section 2(1) Law of Property (Miscellaneous Provisions) Act 1989, constructive trusts and the thorny problems of proprietary estoppel

Can you give away an interest in land in the course of a discussion? In Ely v Robson [2016] EWCA Civ 774 Ms Robson argued that you could not: an oral agreement would not be compliant with s 2 (1) Law of Property (Miscellaneous Provisions) Act 1989.

Following the parties’ separation, Mr Ely had issued possession proceedings and Ms Robson a TLATA claim, in both cases with respect to the family home, which was in Mr Ely’s sole name. In 2007 they had settled this first round of litigation during the course of a discussion in Poole Park, subsequently informing the court that the trial could be vacated.

In round two of the litigation, the Court of Appeal considered the compliance of the oral agreement with s 2 (1) of the 1989 Act, and whether the agreement was sufficiently certain or complete for equitable principles of proprietary estoppel or constructive trusts to be engaged.

Ms Robson prayed in aid the decision of the House of Lords in Cobbe v Yeoman’s Row Management Limited [2008] UKHL 55, and of the Court of Appeal in Herbert v Doyle [2010] EWCA Civ 1095.

Jordans have published my article today: I review the decision in Ely v Robson, setting out whether the court determined the oral agreement to be Cobbe-compliant, and I consider in brief the other recent authorities on the matter. A fuller consideration of the case-law and a fuller analysis of the underlying principles will appear in December 2016’s print edition of the journal Family Law (with Part 2 hopefully following in the January 2017 edition).

In the December 2016 print edition is a fuller analysis of the requirements for formalities in land transactions, the operation of proprietary estoppel, the two authorities from which Ms Robson sought assistance, the confusion caused by Lord Scott’s remarks in Cobbe and the growing body of authorities on oral agreements to dispose of land.

I have been shortlisted for Commentator of the Year at the 2016 Family Law Awards. To find out more and to place your vote, please visit the Family Law Awards homepage.

Expertise: Proprietary Estoppel


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