Conway v Conway: Even amongst family, get it in writing

I imagine you may be tired of the cliché recited by solicitors and legal professionals, which stresses the importance of obtaining independent legal advice and formalising any agreement in writing. However, yet another example that has added wisdom to these words is the High Court’s decision in Conway v Conway and another [2025] EWHC 33314 (Ch). The case was an appeal of an earlier County Court decision, which resulted in a partial win for the appellant.

Background

Peter Conway (the appellant) owned the land known as Church Farm, which included a building known as “The Barn”. In March 2019, Peter, his cousin Stephen Conway, and Stephen’s wife Amber Meek (the respondents) agreed that Stephen and Amber would purchase The Barn from Peter for a sum of £150,000. Payment of the £150,000 would be deferred, with Stephen and Amber sending interim payments of £600 per month to Peter.

In reliance on the oral agreement, Stephen and Amber began renovating The Barn for residential use at a cost of over £231,000. However, the transfer of ownership of The Barn was stalled due to a dispute arising around the exact terms of the agreement and a purported buy-back option in favour of Peter. Relations deteriorated, and on 17 June 2022, Peter issued a claim against Stephen and Amber seeking: a declaration that Stephen and Amber were not entitled to enter Church Farm, an injunction to prevent access, and damages for trespass.

Stephen and Amber filed a defence and counterclaim, pursuing a claim for proprietary estoppel and seeking an order for The Barn to be transferred to them, as well as further injunctive relief for access.

In the County Court trial in February-May 2024, the judge preferred the evidence provided by Stephen and Amber in relation to the oral agreement and was satisfied that an estoppel operated in their favour. The judge ordered specific performance of the oral agreement, meaning Peter would have to transfer ownership of The Barn to Stephen and Amber upon payment of £150,000 and grant rights of way and access to utilities.

Not satisfied with this decision, Peter appealed to the High Court primarily on a point of law.

Legal Issues

The key issue in the appeal was the interplay between the equitable doctrine of proprietary estoppel and the statutory framework governing the formation of a valid land contract found in The Law of Property (Miscellaneous Provisions) Act 1989 (the “1989 Act”). I will briefly outline the relevant rules below.

Proprietary Estoppel

Proprietary estoppel operates to modify property rights. Claims can be successful where the following tests are met:

• A representation, promise, or assurance has been made by the defendant to the claimant.
• The claimant must have relied on this expectation in some way and consequently suffered some detriment from this reasonable reliance.
• Generally, it must also be unconscionable for the defendant to have resiled from the assurance to which the claimant has detrimentally relied upon.

Should the proprietary estoppel claim be successful, the claimant will have established an entitlement to an equity, or interest, in the property, and an appropriate relief can be granted by the Court.

The 1989 Act

Sections 2(1) and 2(3) of the 1989 Act requires that a contract for the disposition of an interest in land must:

• Be in writing.
• Incorporate all the terms which the parties have expressly agreed.
• Be signed by or on behalf of each party to the contract.

Section 2(5) states that nothing in the section affects the creation or operation of resulting, implied or constructive trusts – but crucially the section does not mention proprietary estoppel.

Appeal Arguments

Peter’s appeal therefore was on the basis the County Court had erred in allowing a claim of proprietary estoppel to be used to enforce an oral agreement that otherwise would be void under section 2 of the 1989 Act, relying on a previous line of authority beginning with Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55.

Stephen and Amber relied on authority found in Yaxley v Gotts and Whittaker v Kinnear and argued section 2 of the 1989 Act does not operate as an absolute bar on proprietary estoppel claims.

The Court’s Decision

The High Court judge agreed with the County Court judge in that the respondents had met the tests of an estoppel claim but that the lower court had erred in the kind of relief granted to the respondents in the first instance. Drawing on Cobbe and other authorities, the judge held that the estoppel could not be used to render enforceable a contract which would otherwise be void under statute. However, the judge did not accept that the appellant should be able to walk away with a completely new and refurbished property without paying anything for it; so, although not properly pleaded by the respondents, referred the case back to the County Court for an assessment of equitable compensation.

The judge did briefly consider the merits of an alternative claim that a constructive trust may have been created, which would be caught by the exception in section 2(5) of the 1989 Act mentioned above. However, the judge dismissed this as it was not pleaded by the respondents at the County Court trial and was only raised by the respondents the day before the hearing.

What can we take from Conway v Conway?

• The Court is very reluctant where a proprietary estoppel is established to grant the relief of specific performance of a contract which would otherwise be unenforceable under a statute passed by Parliament. However, the court is still open to awarding alternative forms of relief that are not specific performance.
• The judgment also highlights the importance for those pleading proprietary estoppel to draft pleadings in such cases as widely as possible so as to include all alternative kinds of relief sought in the event the primary relief (in this case, specific performance of the transfer of the land) fails.
• It may seem the respondents received an equitable result. However, had the agreement for the sale been properly formalised, they may have been entitled to ownership of The Barn and avoided the costs and stress involved in a lengthy litigation between family.