Example: A and B are neighbours. A mistakenly believes the end of his land extends 10 feet further (onto B’s land) than his title plan says. In this mistaken belief he plans to build a summerhouse part of which will be on B’s land. A shows B his plans. B shrugs his shoulders and says, ‘No concern of mine what you do.’ A, still believing that where the building is to go is his land, then builds the summer house. Once finished, B arrives with a copy of the title plan and a tape measure. He points to A’s mistake and says he wants the summerhouse pulled down.
Strictly, the land is B’s and the summerhouse is a trespass. A ought to remove it. But if the principle of Estoppel can be invoked, the court may intervene and prevent B from enforcing his right. (I refer to the party seeking the Estoppel as A, and the party against whom the Estoppel order is sought as B.)
For Estoppel to arise five things are required:
(1) A must have made a mistake as to his legal rights.
(2) A must have spent money or done some significant act based on the mistake.
(3) B must be aware of his rights. (Here the extent of his land.)
(4) B must be aware of A’s mistake.
(5) B must either have encouraged A in his expenditure, or indirectly by failing to assert his own rights.
Now, one can see that this situation will arise with boundaries and new developments. Commonly it arises in the situation where A needs B’s consent or acquiescence in some development, he believes he has it, but then after committing himself to the development discovers he has not.
These cases are what lawyers call ‘heavily fact-dependent’: each side will have a different account of what was said and there may be real animosity. My approach is to draw up a history, set out each side’s accounts, and try to organize a meeting. But if settlement is not an option, I can advise on the likely approach the court will take.
