Herbert v Doyle: The Common Intention Constructive Trust and Informal Bargains Concerning Land

Section 2(1) of England's Law of Property (Miscellaneous Provisions) Act 1989 requires agreements for the sale or other disposition of an interest in land to be in writing and signed by or on behalf of the parties. Section 2(5) excepts constructive trusts from the operation of section 2(1). It is rare but possible for a proprietary estoppel claim to arise out of commercial negotiations. Several English Court of Appeal decisions suggest, however, that proprietary estoppel is no longer available in respect of claims based on assurances given as part of a bargain. Instead, such cases can only succeed if they give rise to a common intention constructive trust. This note looks at a case, Herbert v Doyle, in which the Court of Appeal had to consider whether the essential elements of the common intention constructive trust were present.