Whittaker v Kinnear [2011] EWHC 1479 (QB) (10 June 2011)

Whittaker v Kinnear [2011] EWHC 1479 (QB) (10 June 2011)

There is no binding authority that definitively resolves whether proprietary estoppel or constructive trust can arise in a commercial property sale context where the alleged assurances are not reflected in the written contract and the agreement does not comply with section 2 of the 1989 Act. The facts are not sufficiently clear for summary determination, and the defence is genuinely disputed on substantial grounds. The order for possession must be set aside and the case remitted for trial.

Citation
[2011] EWHC 1479 (QB)
Parties
Defendant/appellant: Alvina Whittaker; Claimant/respondent: Anthony David Kinnear (acting by his agents on Gershinson and Louise Brooks of Allsop LLP being Receivers appointed under the Law of Property Act 1925)
Jurisdiction
England and Wales
Judgment Date
10 June 2011
Procedural Posture
Appeal (possession Proceedings) / High Court Appeal From County Court Order for Possession
Outcome
Appeal allowed; order for possession set aside; case remitted for trial.
Legal Topics
Proprietary Estoppel, Constructive Trust, Section 2 Law of Property (miscellaneous Provisions) Act 1989, Overriding Interests, Possession Proceedings, Tenancy Termination, CPR Part 55
Property Law Equity Civil Procedure Proprietary Estoppel Constructive Trust Section 2 Law of Property (miscellaneous Provisions) Act 1989 Overriding Interests Possession Proceedings +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 14 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Alvina Whittaker

Defendant/appellant

Anthony David Kinnear (acting by his agents on Gershinson and Louise Brooks of Allsop LLP being Receivers appointed under the Law of Property Act 1925)

Claimant/respondent

Procedural Posture

Appeal (possession Proceedings) / High Court Appeal From County Court Order for Possession

Legal Issues

  1. 1 Whether proprietary estoppel or constructive trust can arise in a commercial property sale context where the alleged assurances are not reflected in the written contract and the agreement does not comply with section 2 of the Law of Property (Miscellaneous Provisions) Act 1989
  2. 2 Whether the notices to quit were valid and effectively terminated the tenancy
  3. 3 Whether Mrs Whittaker's occupation gave rise to an overriding interest under the Land Registration Act 2002

Ratio Decidendi

There is no binding authority that definitively resolves whether proprietary estoppel or constructive trust can arise in a commercial property sale context where the alleged assurances are not reflected in the written contract and the agreement does not comply with section 2 of the 1989 Act. The facts are not sufficiently clear for summary determination, and the defence is genuinely disputed on substantial grounds. The order for possession must be set aside and the case remitted for trial.

Court Disposition

Appeal allowed; order for possession set aside; case remitted for trial.

Orders

  • Order for possession set aside
  • Case remitted to Colchester County Court for trial