The Gazette 1985

191 / 406

GAZETTE JULY/AUGUST 1985
The Mistaken Improver of Land
by
Robert A. Pearce, B.C.L., M.A.
Lecturer in Law, University College, Cork.
THE traditional view concerning the person who
expends money upon land in the belief that the land is
his own is that:
"the mere fact that the stranger was mistaken does
not give him any right at law or in equity to recover
from the owner either the value of the improve-
ments or the value of his services . . .(The improver)
will obtain relief only if the defendant has
acquiesced in what he did".1
This view falls for re-examination in the light of the
High Court decision in McMahon -v- Kerry County
Council.2 The County Council in that case had mistakenly
built two houses on the McMahons' land. Despite the fact
that the McMahons had no knowledge whatsoever of the
building taking place, Finlay P. refused to allow them to
recover possession from the Council, provided that the
Council compensated the McMahons for the loss of the
vacant site. The Council was thus in effect given relief
enabling it to retain the value of the improvement it had
made to the land. The legal basis of Finlay P.'s decision
was that the principle of proprietary estoppel explained in
Ramsden -v- Dyson3 is part of a wider equitable principle
under which the court can grant relief to a person who
mistakenly improves the land of another, even though
there may be no acquiescence or encouragement on the
part of the owner. This view is so innovative that it is
surprising that the case has not received more attention.4
Background
To appreciate the significance of McMahon -v- Kerry
County Council it is necessary to examine what was
previously understood to be the law. As with a number of
other legal principles, the status of proprietary estoppel in
Ireland was somewhat unclear. It was treated by practi-
tioners and academics as part of Irish law even though the
only reported Irish case on the subject prior to McMahon -
v- Kerry C. C.5 suggested that the doctrine might have a
more limited application in Ireland than in England.6
This was the case of Cullen -v- Cullen.1 It concerned the
right of a son to remain in a mobile home he had installed
on his father's land. Mrs. Cullen had won a fully furnished
portable home in a competition in a Sunday newspaper,
the "Sunday Press". She gave it to Martin, one of her
sons. He began to prepare a site for it on his own lands,
but Mrs. Cullen requested him to erect it nearer to her on
her husband's lands and to that end sought permission
from Mr. Cullen. Relationships with Mr. Cullen were at
that time strained, and as part of a resolution of the family
differences Mr. Cullen was proposing to make over his
lands to Mrs. Cullen. In his reply to Mrs. Cullen's request,
Mr. Cullen, through an intermediary, indicated that since
the lands would be given to the mother, the mobile home
could be put where she liked. Martin accordingly put the
house on his father's land at a cost of about £200 and with
his own labour. Kenny J., the trial judge, was "convinced
that the plaintiff (Mr. Cullen) knew at all times that Mrs.
Cullen had given the house to Martin and that the house
was being erected for Martin to live in".8 Family relations
subsequently worsened and Mr. Cullen, in court
proceedings sought to exclude Martin from his land.
Counsel for Martin sought to rely upon the case of
Ramsden -v- Dyson.9 Kenny J., while appearing to accept
the application of the principle of Ramsden -v- Dyson in
Ireland, rejected the argument of counsel. In his view:
"that case decides that if a stranger begins to build
on land which he thinks is his and the real owner,
seeing the mistake, abstains from correcting it and
leaves him to continue, equity will not afterwards
allow the real owner to assert his title to the land;
but that if a stranger builds on land knowing it to be
the property of another, equity will not prevent the
real owner from claiming the lands afterwards".10
Since Martin knew that the land belonged to his father,
he could not rely upon the case. This interpretation of
Ramsden -v- Dyson is clearly drawn from the explanation
of the doctrine of proprietary estoppel by Lord
Cranworth L.C.11 It is not consistent with the somewhat
broader statement of Lord Kingsdown. 12 Although it
formed part of a dissenting speech, the divergence of
opinion in the House of Lords was only as to the applica-
tion of the facts to the principle. There was no disagree-
ment as to what was the true principle.13
According to Lord Kingsdown,
"If a man, under a verbal agreement with a landlord
for certain interest in land, or, what amounts to the
same thing, under an expectation, created or
encouraged by the landlord, that he shall have a
certain interest, takes possession of such land, with
the consent of the landlord, and upon the faith of
such promise or expectation, with the knowledge of
the landlord, and without objection by him, lays out
money upon the land, a Court of equity will compel
the landlord to give effect to such promise or
expectation". 14
The view Kenny J. took in Cullen -v- Cullen15 is also
inconsistent with the case of Plimmer -v- Wellington
Corporation.16 There the plaintiff carried out improve-
ments to a jetty, not under any mistake that he was the
owner, but in the expectation that his occupation would
not be disturbed. The Privy Council were of the opinion
that in the circumstances the plaintiff should be declared
to have a perpetual licence.
Unfortunately Plimmer -v- Wellington Corporation was
not referred to by counsel in Cullen -v- Cullen. Dillwyn -v-
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