ENGLISH LAW

English law

English law

“English law … allows, in certain circumstances, for the informal creation of rights in land where a dogmatic insistence on documentary formality would grossly controvert the relevant intentions of the parties or unconscionably frustrate their legitimate expectations.” [K. and S.F. Gray]



Historical Background to the Creation of Rights in Land

Prior to 1677, trusts of land could be created by word of mouth, and there was no need for such a disposition to be evidenced by deed or in writing. However, following the tidal wave of statutory reforms brought about by the Law of Property Act 1925, it was provided that a declaration of trust respecting any land or any interest therein must be evidenced either by writing signed by some person able to declare the trust, or else by will.

The informal acquisition of an interest in land

The development of a coherent set of principles to govern the informal acquisition of an interest in land has been frustrated by the courts' apparent difficulties in distinguishing between concepts such as resulting and constructive trusts and the doctrine of proprietary estoppel.

The essence of this paper is to explore the area of equitable interests in land. The transfer of land has historically been governed by the need to exercise caution and formality. It is the case that the use of formal means of rights creation in land such as those provided by a deed or other form of signed writing has historically governed the transfer of interests in land. It is thought that such formal methods of rights creation provide for clarity and certainty, particularly when disputes arise, as they can usually provide an accurate picture of events.

In trusts for land, it is usually the case that there has to be an express declaration of a trust in respect of the beneficiary in order for such trusts to be recognised. However the lack of an express declaration of trust in land has not prevented the courts from interpreting those situations as giving rise to trusts. Trusts, which are recognised by the courts in this way, are referred to as 'implied', 'resulting' or 'constructive trusts'.

Promissory estoppel is a doctrine applied within English contract law, but it is of quite limited scope. English law normally requires a party to provide consideration in order to enforce an informal promise: something done or promised in return for, or as the price of the promise, at the promisor's express or implied request. It is not sufficient that the promisee has relied on the promise, even if the promisor intended him to rely on it, or could have foreseen that he would rely on it. The numerous ways in which the courts started to recognise the informal acquisition of interests in land can be categorised into four-fold. The first was through the means of implied trusts; the second was by means of the proprietary estoppel doctrine, the third was through informally conferred life interests and the fourth, through donations mortis ...