Proprietary estoppel: The golden ticket to the family farm?
In a previous edition of our Agricultural Lore publication, we reported on the case of Habberfield v Habberfield ] where a daughter inherited her parent's farm. Since then, two more farming estoppel cases have hit the press: Thompson v Thompson  and Gee v Gee . These cases demonstrate the Court's broad discretion when deciding how to satisfy the equity and the Court's preparedness to award the entirety of a family farm to a child.
To bring a successful proprietary estoppel claim the following elements must be established:
- A representation or assurance has been made to the Claimant, raising the reasonable expectation that he/she will be given an interest in land
- The Claimant relies on the representation or assurance
- The Claimant suffers detriment in consequence of their (reasonable) reliance on the representation or assurance
- It would be unconscionable for the promise-giverto resile from the promises or representations made.
Thompson v Thompson
Mr and Mrs Thompson acquired Woody Close Farm ("the Farm") in County Durham in 1989. It comprised a farmhouse, bungalow, outbuildings, 115 acres of owned land together with 120 acres of tenanted land.
The Claimant, Gilbert Thompson ("Gilbert"), is the youngest of 5 children and the only son. He farmed with his father since finishing school, aged 15, working full time 7 days a week, and at times, up to 18 hours a day. He was paid £20 a week, increasing to £40, when he was 19 or 20 and then later to £70. He also received free board and lodgings. By 1989, Gilbert's sisters had all left home.
In 1994 Mr Thompson brought Mrs Thompson and Gilbert into the business, creating a partnership, where they each held 1/3 shares (with effect from 1 August 1992). A written agreement was completed, under which Gilbert was required to devote his full time and attention to the business, whereas his parents had discretion as to how much time and attention they devoted.
Mr and Mrs Thompson lived in the bungalow. Gilbert lived there most of his life, moving out permanently in 2003, before moving to the farmhouse in 2013. In 1992 the bungalow was transferred into Mrs Thompson's name.
The Farm, excluding the bungalow, was shown in the accounts as an asset of the Partnership.
On the death of Mr Gilbert in 2012 his partnership interest passed to Mrs Thompson. In 2014 relations broke down between Gilbert and his mother. Gilbert moved out of the Farmhouse. There was a difference of opinion as to the reason Gilbert stopped working on the farm after this time. Certainly by May 2015 he ceased working there completely. Thereafter, Gilbert's position was that he was too ill to work on the Farm between July 2015 and January 2017 and when he attempted to return to work in January 2017, he was prevented from doing so.
Gilbert claimed that throughout his working life, representations were made to him by his parents that, on their death, the Farm, including the bungalow, would be his. He claimed that, in reliance on those promises, he worked on the farm all of his life for a very low wage, never purchased his own property and gave up the possibility of a life outside of the Farm. He contended that it would be unconscionable for Mrs Thompson to be able to dispose of her 2/3 interest in the Farm as she saw fit.
Mrs Thompson's position was that no representations were made to Gilbert about any inheritance.
Gee v Gee
This case concerned a 600 acre farm near Oxford known as Denham Farm ("the Farm"). The Claimant was John Michael Gee ("JM"), the son of John Richard Gee ("JR") who was the First Defendant. The Second Defendant was JM's brother, Robert. The farming is undertaken by the family company, which farms the land under a tenancy.
JR has worked on the farm all of his life, taking over running the Farm in the 1970s with the help of employees. JM started working on the farm in the 1970s and worked there until 2016, when he was dismissed.
JM lived in a caravan on site until 1982, when JR had a house built for him on the Farm, which JM has lived in ever since.
JM was paid the minimum wage for agricultural workers set by the Agricultural Wages Board. By 2008/2009 this was £20,000 p.a. - broadly the same as one of the long term employees.
Robert did a diploma in agriculture, but until 2014 was a builder and property developer.
The company comprises 24,000 shares. By 2014 JR owned the entire shareholding (save 1 share owned by his wife, Pamela). The property was held beneficially between JR (7/18), Pamela (7/18) and the company (4/18).
JR transferred all his property and the company shares to Robert in November 2014. At the same time, Pam transferred her share in the property and her company shares to JM. Since then Robert has managed the farm. JM said that since he was 30 years old until recently, JR repeatedly assured him that he would inherit the' lion's share' of the farm. This stopped because JR took against him, influenced by Robert and Robert's wife.
JM said that he relied on those representations to his detriment by working long hours for low wages and had given up the chance to better himself by working elsewhere. JM recalled 6 specific instances where representations were made, including being told by JR that he could use some of the land as collateral to buy out his siblings and being told that he could not build a new dwelling on the Farm until it was his.
JR and Robert denied that any representations were made and argued in any event, JM had not suffered any detriment. JM was offered a directorship in the company in 2012, but turned it down. JR and Robert said that this was inconsistent with having been promised the farm.
The Outcome – Thompson
In Thompson the Judge determined that promises had been made by Mr and Mrs Thompson. Gilbert had relied on those promises and dedicated his whole life to the Farm, which had an effect on his lifestyle in terms of working hours, financial independence and ability to buy or live in his own house. This was in spite of the fact that Gilbert was unable to give evidence of specific promises that had been made.
Mrs Thompson is still alive and the promise was that he was to inherit the Farm on his parents' death. The Judge awarded Gilbert the Farm and the bungalow, the interest in which he would receive on Mrs Thompson's death. The gift was not accelerated.
The Judge outlined that the equity could be satisfied by giving Mrs Thompson a life interest in her two thirds share in the partnership with a gift over to Gilbert of her share on death. Mrs Thompson was given a right to occupy the bungalow for life.
The Outcome - Gee
In Gee the Judge found that over a 20 year period representations were made that JM would succeed JR, but with some provision for Robert and their sister.
The Judge accepted representations were made and although not frequently repeated or a stock phrase, they were a material consideration in him staying on the farm. Whilst the representations did not detail the shareholdings and the land holdings, it didn’t render them 'insufficiently certain to be relied upon'.
The Judge found that JM was constantly on call and was expected to work as and when required. As an employee, he should have been paid overtime. Whilst JM was provided with his house, that benefit was not enough to compensate him for detrimental reliance on the representations. If JM had left and set up on his own account, he would have been running a viable farming enterprise today.
On the offer of directorship, the Judge said it was meaningless because the practical management of the company was not going to change and the offer did not involve the shareholdings or land ownership.
The award in this case was more nuanced than that which we have seen previously. The Judge awarded JM a 52% shareholding in the company and 46% of the land, which he suggested should be effected through a series of transfers.
What both cases demonstrate is the breadth of the Court's discretion when determining the remedy in estoppel cases. The Courts are not afraid of awarding successful Claimants the entirety of a family farm, when it is justified.
Despite the recent run of successful farming estoppel cases, it remains extremely difficult to predict the outcome of such cases. Each one turns on its own facts and the credibility of witness evidence is crucial. It remains to be seen whether either of these cases will be appealed.