“(Bis)Mar(c)k my words” – Promises and property for non-married couples

Aristocrat Count Maximillian von Bismarck-Schoenhausen, descendant of the formidable first chancellor of the German Empire, Otto von Bismarck, has found himself the target of a property claim in the English courts. The claimant, Josephine Yu Fen Fallegger-Hsieh, says the Count promised that a £1.3 million flat in Notting Hill, which he purchased in 2016 for her to live in, would be “hers” and has asked the court to enforce that promise on the grounds of proprietary estoppel. 

Ms Fallegger-Hsieh is the Count’s former partner. According to her, the couple were together for nearly fifteen years before the Count ended their relationship in 2022, notably by the rather outdated mode of handwritten letter. If Count von Bismarck prefers to buck contemporary trends, then he will be disappointed to find this claim puts him front and centre of a current legal one: the past few years have seen an unmistakable surge in the number of proprietary estoppel claims reaching the courts, with one, Guest v Guest being the subject of a Supreme Court decision in October 2022.

The reason for this trend is not clear; most probably sustained media coverage of this type of claim has raised awareness of its availability. Certainly, there is an apparent shift from more traditional proprietary estoppel claims – usually farming cases, where an adult child or other worker has laboured for years for low pay on the promise that they will eventually inherit the farm but finds the owner’s will fails to honour that promise – to claims with more varied factual bases. In particular, it has become more common for proprietary estoppel claims to be issued during the promisor’s lifetime and often in the context, as here, of an “uncoupling” of unmarried partners.

The factual matrix giving rise to the Count’s case is not uncommon for non-married couples in the high-net-worth space. When he first met Ms Fallegger-Hsieh she had her own living arrangements, in the form of a property in Zurich that belonged to her ex-husband’s family. As part of her financial settlement, she was required to vacate that property by 2016. The Count offered to purchase her a new home and proceeded to do so. According to Ms Fallegger-Hsieh, the Count was explicit with her and in his dealings with the agents and solicitors that this was to be her home and that it was intended to provide her with financial security. Nonetheless, he arranged for the property to be registered to his sole name, promising her that he would leave it to her in his will. Fast forward six years and the couple have parted ways. The Count no longer recognises the property as Ms Fallegger-Hsieh’s and has demanded that she return it to him.

As a non-married partner, Ms Fallegger-Hsieh is already exposed: as one that neither lived with the Count (he preferred to stay in more centrally located 5* hotels), nor made any direct financial contribution to the property, she is particularly vulnerable. This is because the combination of these facts mean she likely falls outside the TOLATA (1996) jurisdiction which is the usual refuge of non-married claimants seeking to establish an interest in property. Her only remaining avenue of redress is proprietary estoppel and indeed, it is the sole ground on which Ms Fallegger-Hsieh’s claim is based.

Helpfully, one of the practical benefits of the recent popularity of proprietary estoppel claims is that we have more clarity on how the doctrine operates. The basic requirements are that:

1. A representation or assurance was made to the Claimant;
2. The Claimant (reasonably) relied on it;
3. The Claimant suffered detriment as a result of their reliance; and
4. It would be unconscionable for the Defendant to resile from the assurance.

As to the form of the representation made, an express promise is not required so long as the relevant assurance is “clear enough”. Ms Fallegger-Hsieh’s says the Count expressly and repeatedly made specific promises to her that the property would be hers. Apparently, he made these both privately and in front of friends and family, and in one case, in front of the property agent who was showing them the property. Independent witness corroboration that promises were made should easily get Ms Fallegger-Hsieh past the first hurdle in establishing her claim. And if she can establish the promises were made, she can probably also get over hurdle two, since there is nothing in this case to suggest it would be unreasonable for her to have relied on them.

Successfully making out the remainder of a proprietary estoppel claim may be trickier. Often the detriment relied on relates to the claimant’s financial investment in the property which they believe will be theirs. Ms Fallegger-Hsieh openly accepts that she has not contributed financially to the property or its contents. Rather, her case is that in reliance on the Count’s promises of the property, she gave up her career in “inter alia organising art shows or exhibitions” so that she could dedicate herself exclusively to the Count from 2017 onwards. This was apparently at the Count’s request and because his health began to deteriorate shortly before the property was purchased.

Changing your position for the worse, for example by giving up promising job opportunities, can be sufficiently detrimental to make out a proprietary estoppel claim. As with all equitable remedies, the relief is discretionary and will depend on the specific facts of the case. The concern for Ms Fallegger-Hsieh is whether a five-year hiatus from her (rather generically described) profession is detrimental enough to make the Count’s conduct unconscionable. The court will concern itself with the proportionality of the relief compared to the detriment suffered. In doing so it may find that awarding Ms Fallegger-Hsieh a £1.3million property for what is ultimately an extended career break, would be excessive to do justice. If so, the Count may just have pulled off a tactical manoeuvre worthy of his statesman forefather.

Samara Dutton, partner for Collyer Bristow, and a member of their contentious trusts and probate team.