Proprietary estoppel by acquiescence - Does it survive in Australia?

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Abstract

Proprietary estoppel in Australia is traditionally divided into two categories: estoppel by encouragement, and estoppel by acquiescence. Under the traditional view, estoppel by acquiescence is more limited in scope than estoppel by encouragement, as it does not apply to the future acquisition of property rights. This article first considers whether that traditional distinction still exists in Australia, and demonstrates the uncertainty in recent case law as to the limitations on acquiescence. It then considers whether the distinction should be maintained. It considers arguments raised by English academic Professor Ben McFarlane that there should be a strong demarcation between estoppel generated by acquiescence and estoppel generated by promises. This article will argue that the traditional difference no longer applies in Australia, despite recent attempts to resurrect the distinction. It will be argued that where the other elements of the action are satisfied, acquiescence can operate as an inducement for an assumption in relation to the future acquisition of property rights. The basis for a proprietary estoppel in Australia is the formation of an assumption, and that assumption can be generated by acquiescence, by explicit promises or by conduct.
Original languageEnglish
Pages (from-to)1-24
Number of pages24
JournalAustralian Property Law Journal
Volume29
Issue number1
Publication statusPublished - 2021

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