Gabriella Banham and Stephanie Butler from the property litigation team at Birketts discuss the High Court’s decision in Conway v Conway, which examined the intersection between s.2. of the Law of Property (Miscellaneous Provisions) Act 1989 and the doctrine of proprietary estoppel.
Family arrangements around property often begin with trust, goodwill and a shared understanding that “we’ll sort the paperwork later”. The High Court’s decision in Conway v Conway [2025] EWHC 33314 (Ch) is a clear reminder of the risks in taking that approach, particularly where land is concerned.
The case shows the limits of relying on informal promises, even where one party has acted in good faith and spent significant sums of money on the basis of what they believed had been agreed.
The background in simple terms
The dispute arose within a family. Peter Conway owned a farm known as Church Farm, which included a barn. In 2019, discussions took place between Peter and his cousin, Stephen Conway, and Stephen’s wife, Amber. The understanding was that Stephen and Amber would buy the barn for £150,000, a figure well below market value to reflect the substantial renovation works required to convert it into a home.
While there was no dispute that discussions had taken place and that a broad agreement was reached, the arrangement was never put into a formal written contract. Crucially, certain key terms were not agreed clearly, including whether Peter would retain a right to buy the barn back in the future.
Despite this, Stephen and Amber went ahead and carried out extensive renovation works. Over the next two years, they claimed to have spent well over £200,000 transforming the barn into a family home, believing it would ultimately be transferred to them. Relations later deteriorated, solicitors became involved and the proposed sale was never completed. Peter then brought court proceedings, asserting that Stephen and Amber had no legal right to remain on his land.
Stephen and Amber defended the claim. They counterclaimed for an order that the barn be transferred to them. They also sought “further or other relief”.
The legal argument: Proprietary estoppel
Stephen and Amber relied on proprietary estoppel, which can apply where a landowner gives another person a clear assurance that the latter will have rights over land, that person reasonably relies on the assurance, and they suffer a detriment as a result.
If it would be unconscionable (unfair) for the landowner to go back on their word, the court may intervene to prevent injustice.
At first instance in the County Court, the judge accepted that Stephen and Amber had acted in reliance on assurances and that it would be unfair for Peter to deny them an interest in the barn. The judge ordered Peter to transfer the barn to Stephen and Amber upon their paying Peter £150,000 (the “Transfer Order”).
Peter appealed the decision on three grounds:
- That the judge erred in law in concluding that the respondents could rely on proprietary estoppel as a means of enforcing by specific performance an oral contract for the sale of land.
- That the judge erred in fact and law in finding that the parties had reached an immediately binding and concluded agreement for all terms necessary to effect a transfer of land which could be enforced by specific performance.
- Whether the judge erred in finding that proprietary estoppel could operate by implying terms into the alleged oral agreement by way of the open contract principle.
The High Court’s decision
Peter’s appeal was partially successful.
According to Mr Justice Michael Green, the argument came down to a relatively short but interesting and difficult point of law: the intersection between s.2. of the Law of Property (Miscellaneous Provisions) Act 1989 whereby contracts for the sale or other disposition of an interest in land must be in writing, and the doctrine of proprietary estoppel.
On the first ground, the judge noted:
“Everyone recognises that s.2 is not an absolute bar to a proprietary estoppel claim, even one based on a concluded agreement, but similarly it must be accepted that s.2 has some effect in this context. Parliament has decreed that contracts for the sale or disposition of an interest in land must be in writing and that, if they are not, they cannot be enforced. It seems to me that the position that has been reached on the authorities is to confine the reach of s.2 in relation to proprietary estoppel claims where the relief sought to satisfy the equity is the enforcement of the oral contract that is otherwise void because of s.2. In other words, s.2 has a role to play in determining the appropriate relief to be granted where all elements of proprietary estoppel are established.”
Allowing the appeal on ground one, he added:
“I entirely understand why the Judge sympathised with the position of the respondents and there is no appeal against the finding that the appellant acted unconscionably in not honouring the agreement… But that cannot affect the relatively simple issue of law that it was not open to the Judge on the facts of this case to make an order based on proprietary estoppel that amounted to specific performance of a void and unenforceable oral contract. While that is not a meritorious outcome, it is the effect of s.2 and I am unfortunately bound therefore to allow the appeal on Ground 1.”
Dismissing the second ground, Judge Green explained:
“For the purposes of proving the requisite elements of proprietary estoppel, it is not necessary to prove that there was a concluded agreement on all relevant terms. In this sort of case, the assurance or representation relied upon is said to be a concluded agreement between the parties and, in my view the Judge’s findings in that respect cannot challenged on appeal.”
The decisions on the first two grounds made the third irrelevant.
Key takeaways
On the one hand, the High Court held that the doctrine of proprietary estoppel cannot be used to achieve what is, in substance, specific performance of an oral contract that statute renders unenforceable. On the other it was not prepared to simply allow Peter to walk away with a refurbished property for which he had paid nothing. The High Court set aside the transfer order and returned the matter to the County Court to determine the level of compensation that should be awarded to Stephen and Amber.
In short, the County Court judge’s findings on proprietary estoppel were left intact, but the remedy was confined to compensation rather than transfer of the property.
One of the key messages from Conway v Conway is that proprietary estoppel is not a mechanism for enforcing informal or incomplete property bargains. The doctrine is aimed at preventing unconscionable outcomes, not at rewarding risk-taking or curing poorly documented arrangements.
Even substantial expenditure and a genuine belief that a transfer would take place may not justify an order for the transfer of land where the underlying agreement falls foul of statutory requirements.
About the authors
Gabriella Banham joined Birketts in March 2020 and has over eight years’ experience working within the legal industry, assisting solicitors in full-service law firms in Cambridge, gaining experience in property litigation, construction litigation, employment law and real estate.
Stephanie Butler is a senior associate in the Property Litigation team at Birketts, having qualified in September 2018. She is a leading member of the firm’s Home Ownership Disputes and TOLATA practice. Stephanie specialises in advising private individuals on equitable and co-ownership disputes.Conway v Conway: The risks of informal family property arrangements
