Part performance, the constructive trust and

proprietaryestoppel
In Hong Kong, a failure to comply with the formalities contained in section 3(1) of the Conveyancing and
Property Ordinance will mean that a concluded oral agreement is unenforceable. All may not be lost,
however, for the party who wishes to enforce the agreement. Equity offers three overlapping ways in which
the agreement might be saved or in which the disappointed party might get some remedy as a result of
the other partys decision not to honour the agreement. These are; part performance, the common
intention constructive trust and proprietary estoppel.
Part performance makes the oral agreement enforceable where there have been some acts for which (on
the balance of probabilities) the agreement is the most likely explanation. The common intention
constructive trust comes into existence when the parties have reached an agreement as to the beneficial
ownership of the property and the claimant has acted on that agreement or assurance that he or she is to
have an interest to his or her detriment.Yaxley v Gotts([2000] Ch 162 CA (Eng)) andBanner Homes Group
plc v Luff Developments Ltd([2000] Ch 372 CA (Eng) are both examples of agreements that were given
effect to in this way.
In essence, a successful proprietary estoppel claim is available in very similar circumstances to the
common intention constructive trust. It relies on the claimants detrimental reliance on an assurance that
he or she would have some interest in the land. One significant difference between the two is that in the
case of a proprietary estoppel claim, the claimant is to be given the minimum remedy to satisfy the
equity. The claimant may or may not be given an interest in land.
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