Q. My brother was gifted the family lands by my dad about 10 years ago, excluding the family home which my father continues to live in. It was always part of the arrangement that there would be a site for us if any of the other brothers needed it. About 18 months ago, I spoke to my brother and agreed to buy a site from him. Dad was annoyed that there was any element of money changing hands, but to be fair I was looking for a big enough site. I have applied for permission, done some necessary ground tests and works, and that should be through shortly. Now my brother is saying that he won’t be able to sign the lands over to me. What can I do?
Dear Reader,
It is a long-standing legal principle that any agreement regarding the transfer of lands must be in writing. This has been a legal rule for a great number of years since the Statute of Frauds 1695 and reiterated in the Land and Conveyancing Law Reform Act of 2009.
As there was no written agreement in place, at first blush, there appears to be no contract to be enforced.
That said, the law also recognises where it would be fundamentally unfair to deny relief to a person in certain circumstances. This is known as proprietary estoppell. It applies in circumstances where a party has firstly acted to their detriment on foot of a belief, secondly that belief was known, known, or encouraged by another, and that the person that would lead to rights in respect of a property being given to that first person.
The courts consider each claim on its own merits.
You would have to prove that you acted to your ‘detriment’. It would appear to me from what you say that you will probably reach this bar. Clearly, you have spent money on the endeavor, you paid for your planning application, ground tests and other works. It also appears that you spent considerable time and effort to get your planning application approved. From the basic outline, I think the court would consider those actions to be sufficient for you to ground a claim, depending on the sum and time spent by you.
There is no need that there be evidence in writing, however, is it possible that there was a document signed by your brother as the owner of the property allowing you to take a planning application? If you do not hold a copy of this document, you can obtain same form the planning authority.
You should speak with your solicitor at the very earliest juncture. Any possibility of resolving the matter without resource to litigation should be explored. If your brother has specific concerns, perhaps they could be addressed.
Finally, I wonder would a word from your father assist?
