Estoppel in Pais literally means “by act of notoriety” of something which is “solemnly acknowledged.” Right. So, yet again we are going to delve into what is noticed on the ground. Here are its elements – ehr “requirements”:
- An act, an admission, or a statement is made by the first party which is inconsistent with the subsequent claim;
- The second party reasonably relies on the act, admission, or statement; and
- An “injury” (i.e. generally a loss of cash) has resulted or will result to the second party if the first party’s contradiction is allowed.
Not Too Shabby! … ? Don’t be so sure! If you (via your lawyer) are trying to use this doctrine, at best it probably an innocuous line on your document, but there’s a good chance that it is much more insidious than that. Why? Though this isn’t going to be a David Letterman’s Top 10 List, the reasons abound.
- Your attorney is probably tossing this claim in because it shows up on his template. That’s pretty reassuring isn’t it?
- Your attorney realizes that he or she can’t separate “grab” from “a.. ehr, ahh … tail” – yeahhh that’s the ticket! – in your case using the statutory period of adverse possession, so this claim is being used to bleed you … ehr, your neighbor.
- Your attorney sees a nice little money train out there running down potentially damning acts, admissions, and statements by others … good, good, good!
- Woodsheding you and your witnesses in an attempt to make the claim stick … all bountiful sources of cash!
- A goofy standard of proof which appears to be more than a preponderance of the evidence but not necessarily clear [cogent] and convincing … another nice little opportunity for argumentation (i.e. money, money, money).
There’s more that I can speak to if you want. For instance, Estoppel in Pais is an equitable doctrine and that means that for it no jury can be assembled.
The basic point though, as I am sure you already culled, is that I don’t place a lot of credence in this doctrine. Additionally, I think that the attorneys that use it either don’t know much about boundary dispute law or their just jerking their clients and mine around.