Most readers will know that proprietary estoppel is an English law doctrine which can apply where promises are made to somebody (often a family member working in return for the promise) that real property will be transferred to them in the future; the doctrine can prevent the promisor from reneging on the promise. In Burmingham v Le Hegarat [2025] JRC 012, the Royal Court recently expressly recognised the doctrine in Jersey, departing from the most recent case law on the subject and potentially reigniting a debate which many considered to have been settled.
There had been some considerable doubt as to whether the doctrine had been compatible with the principles of Jersey law following the earlier decision of the Royal Court in Flynn v Reid [2012] (1) JLR 370 (to which case the Royal Court was referred in Burmingham v Le Hegarat). In particular:
- W J Bailhache, Deputy Bailiff (as he then was) had observed at paragraph 26 of the earlier judgment that: "It is an essential component of proprietary estoppel under English law that the party asserting the benefit of that estoppel must have acted in the belief either that he or she already owned or would obtain a sufficient interest in the defendant's property to justify the expenditure that had been incurred."
- The Deputy Bailiff went on to summarise the problem caused by applying the doctrine in Jersey at paragraph 48 as follows: "The central difficulty with applying the English doctrine of proprietary estoppel – assuming one can adequately define it – in Jersey is that it requires us to accept the principle that there is a theoretical division between the legal ownership of immovable estate in Jersey and its beneficial ownership." (In Jersey it is well established that there cannot be a division between the legal and beneficial interests in real property).
- He concluded (at paragraph 50) that: "For these reasons, we do not think that the doctrine of proprietary estoppel forms part of Jersey law if its effect is to create an equitable interest in land that exists in parallel with the legal interest which, as we understood it, was the bedrock of the plaintiff's claim."
In Carry v Liston [2017] JRC 144, the Royal Court (R J McMahon, Commissioner) conducted a very detailed review of the differing authorities and concluded in favour of the view in Flynn v Reid, to the effect that the doctrine of proprietary estoppel was not available in Jersey.
The Royal Court in Burmingham v Le Hegarat did not refer to Carry v Liston, but was mindful of the concerns expressed in Flynn v Reid. However, it did not consider them fatal to the recognition of the doctrine in Jersey. At paragraph 35 of the judgment, Commissioner Binnington reasoned as follows:
"Once the necessary elements are made out, the Court has a wide discretion as to remedy and it may well be that at that stage the remedies available to a Jersey Court will be fewer than those available to an English Court by reason of the rules of Jersey law applicable to immovable property. One obvious example is the inability of a Jersey Court to make an order for specific performance of an agreement to create an interest in land, as in Felard Investments Limited v Church of Our Lady, Queen of the Universe (Trustees) [1979] J.J. 19 or, as in Flynn v Reid, the recognition of an equitable interest in immovable property in parallel to the legal interest. The absence of those particular remedies does not, in our view, prevent the Royal Court recognising the doctrine of proprietary estoppel and, where appropriate, applying a remedy for the relevant unconscionable behaviour which does not offend against established Jersey law principles."
On the particular facts of the case, the Royal Court did not consider that proprietary estoppel was applicable because the Defendant could not establish that:
- there had been a promise by his parents that he would inherit a farmstead and land to the exclusion of his sisters (or in other words that he "had a belief, which was known to and encouraged by either of his parents, that he either had or was going to be given a right in or over the land"); nor that
- he relied upon or acted to his detriment on the faith of such a belief.
The decision potentially reopens the door for claims where those elements can be made out, although the question of what remedy could be granted in such claims which would be compatible with the law of Jersey will no doubt continue to cause problems in the future.
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Location: Jersey
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