Publication Type

Journal Article

Version

publishedVersion

Publication Date

1-2011

Abstract

In recent years, the law of unjust enrichment especially in the context of restitution for mistake has developed at an unprecedented pace. The modern jurisprudence of the law of restitution for mistake is exemplified by the causative mistake approach, i.e. if the claimant's mistaken belief causes the claimant to enrich the defendant, the claimant is prima facie entitled to succeed. The principal research question in this paper is whether the causative mistake approach is applicable to a claimant who mistakenly improves the land of the defendant. Recent case law and the most prominent academic treatise in this area suggest that a mistaken improver of land may not succeed pursuant to a causative mistake. Instead, the authorities (borrowing from proprietary estoppel jurisprudence) suggest that the claimant must prove that the land owner acted unconscionably before he or she is entitled to relief. This paper investigates whether this restrictive interpretation of the law of unjust enrichment in relation to a mistaken improvement of land is justified.

Keywords

land law, restitution, unjust enrichment, mistake

Discipline

Dispute Resolution and Arbitration | Land Use Law

Publication

Conveyancer and Property Lawyer

Volume

75

Issue

1

First Page

8

Last Page

29

ISSN

0010-8200

Publisher

Sweet and Maxwell

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