In Nova Scotia if there is a dispute over the ownership of, or rights to the use of, land, the starting point is the Statute of Frauds. The Statute of Frauds recognizes that land ownership is so valuable, ownership can only be transferred in writing. The goal is to avoid confusion as to ownership rights to land. 

Statute of Frauds Not Always the Only Option

However, the courts have come to realize that relying on exclusively the Statute of Frauds will sometimes lead to patently unfair outcomes. Enter the concept of “Proprietary Estoppel”. 

Test for Proprietary Estoppel

In 2017 the Supreme Court of Canada released a decision that confirmed that proprietary estoppel is a new valid cause of action in Canada. In 2021, the Nova Scotia Supreme Court followed this case and confirmed Proprietary Estoppel is valid in Nova Scotia as well.

Proprietary Estoppel allows a party to enforce a promise that was made with respect to an interest in land if the person who made the promise rescinds it. 

To have the promise enforced, you would have to prove all of the following:

1. The promise must be tied to an interest in the land and the details of the promise must be clear, not vague (For example, “If you help me with upkeep for awhile, I’ll give you some land.” Would be too vague to be enforced)

2. The person who made the promise must have an interest in the property they are able to give (They don't need to own the property at the time the promise is made, but they must own the property at the time the promise is to be fulfilled).

3. You have relied on the promise to your detriment (usually, but not always, this means you spent money to fulfil your end of the promise) and it needs to be reasonable, all things considered, that you relied on the promise. 

Test for Unconscionability

Proprietary estoppel will not enforce every promise with respect to land. The court would have to find the circumstances such that it would be unconscionable to allow the promise to be rescinded. To determine the circumstances unconscionable, you would have to  meet this test:

1. There was a mistake as to your legal rights;

2. You acted to your detriment based on that mistaken understanding;

3. The person who made the promise was aware of your mistaken understanding; and

4. They allowed or encouraged you to continue to act to your detriment.

If you are able to satisfy the court that you did reasonably rely, to your detriment, on a promise with respect to land and it would be unconscionable to allow the person who promised the land interest to rescind the promise, then the court can enforce that promise.

Remedy Not Always the Land Interest

Because this remedy is what is known as an equitable remedy, the court can only go as far as it needs to to minimally satisfy the inequity.  What that means is, in many circumstances rather than forcing the interest in the land to be transferred to the wronged party, the court can order payment in a value equal to the inequity instead. The interest in the land is usually only transferred if it can be shown that the inequity cannot be solved by money alone. This typically happens when the wronged party has invested their personal time and effort directly in the disputed property itself. 

Check out our other blogs on your rights under Proprietary Estoppel:

• WHAT ARE MY OPTIONS IF I WAS PROMISED FAMILY LAND IN NOVA SCOTIA BUT THE WILL LEAVES THE LAND TO SOMEONE ELSE?

• CAN I GET OWNERSHIP TO A NOVA SCOTIA PROPERTY THROUGH SQUATTER’S RIGHTS IN NOVA SCOTIA IF THE OWNER GAME ME PERMISSION YEARS AGO?

Consult a Lawyer to Understand Your Rights

If you were promised an interest in land that is now being denied after you fulfilled your end of the bargain, you should consult a lawyer to understand your rights. Just because you never obtained a deed no longer means you have no remedy.

 If you have any questions about Proprietary Estoppel or your rights to land you can call us at (902) 826-3070 or email us at info@highlanderlaw.ca to set up a meeting with one of our lawyers at our Tantallon law firm. You can also schedule a no commitment Issue Review Consult for $250+HST where you have the opportunity to explain your situation to a lawyer and get basic advice before deciding whether or not you'd like to retain us.

By: Dianna M. Rievaj - Founding Lawyer

 The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. Nothing contained on this blog is legal advice or constitutes a legal opinion. While it is our goal to provide information which is current, legislative changes and court decisions, among other matters, may result in some information no longer being current or accurate. You should consult a lawyer before relying on any information. The views expressed herein by individual contributing lawyers posting entries to the blog are solely those of the authors and should not necessarily be attributed to or considered representative of the firm of Highlander Law Group Lawyers