Search

Copyright of Environmental & Social Management Journal / Revista de Gestão Social e Ambiental is the property of Environmental & Social Management Journal and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The digitization of land records is being promoted by the World Bank at scale, especially in developing countries. Efficiently maintaining land records can improve tenure safety and food security, reduce poverty, and aid democratic urbanization. While the 2030 Agenda for sustainable development encourages the use of new technology to administer land, it also forewarns that such initiatives ought to factor in digital divide. These evolving processes tend to have a detrimental impact on the tenure rights of marginalized people who are devoid of both access and understanding of such modernization efforts. Through this paper, we examine digitization and associated land governance processes from a human rights perspective. To bring them to light, we compare digitization initiatives in both India and South Africa and draw lessons from them to address issues of equity, inclusion, and good governance in an increasingly digital world. [ABSTRACT FROM AUTHOR]

Under the doctrine of proprietary estoppel, a promise made to another that they will acquire a right in the promisor's land can give rise to a legal remedy, if the promisee has detrimentally relied on that promise. In Guest v Guest, the Supreme Court was asked to settle a long‐running debate about how judges should go about fashioning that remedy. The Court held that the claimant's award should be whatever is required to alleviate the unconscionability constituted by the promisor's repudiation of their promise. How that is to be determined will vary from case to case, but Guest v Guest makes clear that the starting assumption is that the promise will be enforced. This note sets out the approaches of the majority and the minority, and then discusses a number of issues raised by this decision. [ABSTRACT FROM AUTHOR]

The Supreme Court recently handed down its decision in Guest v Guest [2022] UKSC 27. This was an appeal against an award in proprietary estoppel of around £1.3 million. A proprietary estoppel claim requires detrimental reliance on a promise to grant the claimant an interest in land. This generates an 'equity', which enables the court to fashion a remedy to cure this unconscionable situation: for example, an order to transfer the promised interest to the claimant, or an order to pay a monetary equivalent of what the claimant expected. The doctrine has been relied upon in media-friendly cases where claimants had worked on their family farms for low or no pay for many years on the expectation of an inheritance and ended up being cut out of that inheritance. Lord Briggs, for the majority, favoured enforcing the promise as a starting point while allowing for variation where 'real-life problems' warranted it. He held that the claimant should have what he expected but, in a novel approach, gave the defendants an entitlement to choose between two forms of relief. Lord Leggatt, dissenting, held that the remedial aim was to do only what was necessary to prevent detriment to the claimant. On his view, compensating the claimant's reliance loss would be sufficient for this, and, in that regard, he did not factor in lost opportunities. This was a narrow scope to adopt, and the majority judgment is more likely to provide redress for the loss of important life opportunities. [ABSTRACT FROM AUTHOR]

In Hong Kong law, the courts have always declined to introduce the remedial constructive trust device, characterising it as a moot point or as a device that does not exist in Hong Kong. However, the most recent Court of Final Appeal (CFA) decision in Cheung Lai Mui v Cheung Wai Shing [2021] HKCFA l 9 deviated hom the foregoing attitude to Temedial constructive trusts. It recognised "unconscionability" as the basis of relief, demonstrating the departure of Hong Kong law from the principles of proprietary estoppel currently applied in the English law. Contrary to the English approach of minimum equity to do justice, the exercise of broad discretion by the CFA in Cheung Lai Mui was more similar to the Australian approach to proprietaTy estoppel remedies. This case note analyses the reasons why the CFA adopted the remedial constructive trust approach in Cheung Lai Mui, as well as the problems that arise Fom the adoption of such an approach in Hong Kong law. [ABSTRACT FROM AUTHOR]