A guide to boundaries and servitudes in Jersey

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1 A guide to boundaries and servitudes in Jersey JUNE 2012 For more briefings visit mourantozannes.com This briefing is only intended to give a summary and general overview of the subject matter. It is not intended to be comprehensive and does not constitute, and should not be taken to be, legal advice. If you would like legal advice or further information on any issue raised by this briefing, please contact one of your usual Mourant Ozannes contacts. Contact: Gavin Renault Property Practice Area Manager, Jersey For contact details, please see the end of this briefing. It is essential as a first step when either purchasing a property or carrying out works to any property, to first establish the precise boundaries of the property and the nature of any covenants or servitudes which may affect the property. Jersey common law recognises certain quasi building restrictions (referred to later in this briefing) which can impact significantly upon the ability to build up to a boundary line of a property. It is important not to build beyond the boundary line in such a manner that one is encroaching upon a neighbour's property. The obligation to set back With certain exceptions mentioned later in this guide, Jersey common law imposes an obligation on every property owner to set back any new building (or any part thereof such as paving slabs, drains etc) constructed on the property by an offset (or relief) of at least 16½ imperial inches from the boundary line. An offset is a strip of land 16 ½ inches in width dependant from a boundary. This common law obligation is frequently cancelled in the property owner's title or deeds by way of an express right to build right up to the boundary line without leaving an offset. This express right usually takes the form of an enclosure clause which stipulates that one or other or both of the neighbouring proprietors can build right up to the boundary line without leaving an offset. Certain types of walls and boundary stones If the property's boundary is stated as being the ownership of an existing enclosure such as a wall, bank or hedge, the owner of the property can build right up to such physical enclosure, provided no opening is created. However, it should be remembered that he may not have access rights onto the neighbouring property to build or subsequently maintain the construction in the future (unless a specific access right is created or already exists by means of a deed passed before the Royal Court). There is equally no obligation to leave an offset towards a party owned (shared) enclosure, but the same points would apply with regard to access. If the property's title claims ownership of an enclosure, it is presumed that the enclosure is owned with the benefit of an offset beyond the enclosure. It is the line formed by the outer extent of this offset that forms the boundary line. Of course, if the property's title claims the ownership of an enclosure but states that the enclosure is owned without this implied offset, then no land is owned beyond the outer face of the enclosure. If the enclosure which forms the boundary is in the ownership of the neighbour, the claim to such enclosure will be made in the neighbour's title and the title to one's own property should be silent as to the ownership of such enclosure. The neighbour's claim of ownership will state whether the enclosure is owned with or without an offset. If it is owned with an offset, a further offset must be left. If the neighbour claims the enclosure without an offset then at least one offset must be left. However one also needs to consider whether the neighbouring owner has a right of access to maintain the boundary enclosure. In this event sufficient room must be left to enable the neighbouring owner to exercise his right of access. If a wall or enclosure is stated to be party owned then the demarcation or boundary line runs down the middle of that enclosure. There is no obligation to leave an offset towards such enclosure, but as stated earlier anything built up to or close to that party owned boundary enclosure may be prejudiced by virtue of a lack of contractual rights for maintenance purposes. mourantozannes.com BVI CAYMAN ISLANDS GUERNSEY HONG KONG JERSEY LONDON

2 If properties are divided merely by means of a demarcation line (an imaginary line usually linking two points) and there is no provision which enables the property owner to build either over or up to that demarcation line, the obligation to set back or leave an offset applies to both sides of the demarcation line and must be observed. In the rare case that boundary stones have been established in the deeds but no enclosure clause has been created, the obligation to leave an offset can cause some confusion. If boundary stones are stated simply to be party owned there is an obligation on both owners to set back or leave an offset from the demarcation or boundary line running through the centre of those stones. If the boundary stones are stated to be party owned, without an offset there is no obligation to set back or leave an offset and therefore either party may build an enclosure (which will be in his ownership without an offset) right up to the demarcation line running through the centre of the stones. Again in this case unless otherwise stated the party building the enclosure will suffer from a lack of contractual access rights. If boundary stones belong to the property with an offset the owner can build right up to the outer face of the boundary stones and will additionally own the offset beyond the stones. A neighbour in turn would have to set back or leave an offset from the outer extent of such offset so as to leave a gap of two offsets, i.e two feet nine (imperial) inches towards the neighbour's enclosure. If the boundary stones are stated to belong to the property without an offset the owner can build right up to the outer face of the boundary stones but will not own an offset beyond the stones. Any neighbour wishing to build towards those stones must leave an offset unless there is something to the contrary in their title deeds. Why 16½ Inches The main purpose of an offset was to provide a mutual strip of land of two feet nine inches in width for access purposes between the neighbouring properties to maintain the relevant enclosures. Access Rights The offset is clearly inadequate for proper maintenance and in modern conveyances it has become normal to provide for an express right of access for such purposes over a neighbouring property with or without workmen, ladders, scaffolding and tools. In the absence of an offset or express access right there is no implied right of access to go onto a neighbouring property to undertake building, repair or maintenance works. Therefore when considering any works on or close to the boundary it is important to consider whether the property benefits from sufficient access rights to allow for the maintenance of all proposed constructions. Party owned walls and enclosures Either owner may make reasonable use of a party owned wall provided in so doing he does not imperil his neighbour. Unless there is an express provision to the contrary in title, a party may not use more than his or her half width of the party owned wall. Moreover the parties may not use their respective halves in such a way as to undermine or over burden the wall. A party owned wall may not be demolished or substantially altered without the consent and participation of the neighbour. A window or opening cannot be established in a party owned wall unless there is an express right to such effect in the title deeds. The costs of maintaining and repairing a party owned wall are borne in equal shares by the relevant neighbouring owners. If a party owned wall is in a state of disrepair there is no right for one party to unilaterally undertake the necessary maintenance works nor to go on to the neighbouring property to undertake works to the party wall. There is a common law right of action though which may be brought against a neighbour who will not participate in such repairs compelling the neighbour to participate in such repairs and contribute a half share of the costs. Caution needs to be exercised if it is proposed to build over the full width of a party wall. As indicated above, the common law position is that a property owner is not permitted to build over more than their own half of the wall without the consent of the neighbouring owner evidenced by express rights contained in a contract passed before the Royal Court. If the proprietor were to build over the whole width of the wall (without consent) this would

3 be an encroachment upon the neighbour's property. In some instances old deeds provide that if a party owned wall is to be increased in height such increase must be effected over the whole width of the wall and such increase so established will be equally party owned in the future. This particular type of provision often subsists in respect of old town properties but may be absent from the more recent conveyances of the property. In cases such as these it is usually stated that the party undertaking the work shall be responsible for the costs of the work. High Hedges Legislation Where a hedge is over two metres above ground level (and there are no other restrictions or controls relating to this hedge in either of the neighbouring owners' respective titles) then if the parties cannot come to agreement about the height of the hedge, the party wishing it to be cut back has the ability to refer the matter to the Minister for Planning and Environment under the High Hedges (Jersey) Law The Minister may issue a remedial notice requiring the hedge to be cut back, if he considers this to be justified. The Minister cannot require the hedge to be removed or reduced to a height of less than two metres though. The hedge complained of must be wholly or predominantly composed of evergreens or semi-evergreens. Windows and openings No window or other opening (construed by Jersey law as including any manner of opening such as an overflow pipe or air vent) which could conceivably provide a view may be established within two feet nine inches (imperial) of the boundary line. That being said, in the case of a window it is accepted that, if the window is sealed up so that it cannot open and is established in opaque glass, there is no infraction of this common law rule. Encroachments Generally, Jersey common law maintains that whoever owns the soil owns everything above and beneath it. Accordingly, if part of a new building (such as roofing or guttering) overhangs the neighbouring property this will be an illegal encroachment unless provision has been made for such encroachment in the title deeds. The same would apply, if something (eg part of the foundations or drains) has been established beneath the neighbour's property. The owner who suffers the encroachment cannot take action to physically remove the encroachments but must obtain a Court order. An exception exists in respect of encroaching roots. The neighbour into whose land such roots encroach may remove them without a Court order. Naturally an exception exists in respect of units or flats sold under the Loi (1991) sur la copropriété des Immeubles Bâtis (the Flying Freehold Law), whereby the owner of the unit is not deemed to own everything above and beneath that unit. Common Areas If the property is owned together with an interest or share in neighbouring or adjoining property (for example a courtyard or estate roadway) such that the property owns an interest in that road or courtyard, it must be understood that such a common area cannot be altered without the consent and participation of all co-owners. There is Jersey authority showing that it is not possible for example to establish "sleeping policemen" on a communally owned estate roadway unless all co-owners consent. In a similar manner it is not possible to alter the physical layout of a common area such as a courtyard or "crescent type" garden so as to make one a garden and the other a parking area without the consent of every one of the co-owners. If any major reorganisation of such type is proposed, a deed of arrangement should be passed by all relevant parties before the Royal Court setting out the new arrangements. Building restrictions, rights of way, drainage and other rights Great caution needs to be taken when the deeds contain an express building restriction. It is vital that the extent of the restriction and the area affected by it is clearly identified. There are, however, other rights which effectively take the form of building restrictions. The obligation to leave an offset and not to build on or over this strip of land has been mentioned above.

4 Additionally, if a neighbouring property or properties enjoy rights over another's property it must be appreciated that in certain circumstances those rights can effectively operate as building restrictions. If the property is subject to a right of way, it is important to ascertain the extent of that right of way before building in proximity to it. The neighbour who has the benefit of that right of way can insist by means of legal proceedings that any new construction established over the right of way be removed. In a similar manner it is important not to build over an area in which a third party has the right to establish drains or other services together with a right of access onto the property for the purpose of maintaining such drains or other services. Naturally, if another party has a right (eg with workmen, scaffolding and ladders) of access over the property to be developed in order to maintain the walls or the side of the neighbour's property, the relevant area cannot be developed so as to deprive that party of such right. Water A property owner may use the water from any stream passing through his property, but the stream may not be dammed nor diverted so as to deprive those lower down the stream. A property owner may retain rainwater which falls upon his land. However, the rainwater must not be caused to drain onto neighbouring property, other than in accordance with the natural lie of the land or in such a manner as has been contractually agreed. The owner of the lower land is obliged to accept the water which naturally flows onto the land from the higher land in its accustomed channels. The Water (Jersey) Law 1972, the Water Pollution (Jersey) Law 2000 and the Water Resources (Jersey) Law 2007 govern the use and treatment of water in Jersey and impose criminal penalties for water pollution. Connection Rights It should be remembered that even if drains or services serving a neighbouring property drain through your property, it may well be the case that the rights in favour of the neighbour were created in such a manner that they are for the exclusive use of the neighbour. In such cases the owner of the property under which such drains or services are established may not use them unless a right to join them is created by means of a contract passed before the Royal Court. Necessity for a contract to be passed before Court If rights are required from a third party or the neighbour's consent is sought in respect of any of the above matters, such rights need to be granted or the consent recorded by means of a contract passed before the Royal Court. This is essential since any other oral or written agreement will be effective (subject to proof) only against the original parties to that agreement and will not be enforceable against a purchaser or other party taking title to the property. Servient Tenement/Dominant Tenement The property with the benefit of a right over another property is known as the dominant tenement. The property encumbered with the obligation to provide a right is known as the servient tenement. In Jersey both positive and restrictive covenants run with the land in perpetuity, so will continue to bind successors in title. In general, under Jersey law, servitudes created in title suffered by a servient tenement are said to run with the land and continue to exist irrespective of a change in the owner of the servient tenement. Similarly, whoever owns or occupies the dominant tenement at any given time is entitled to exercise the servitude for the benefit of the dominant tenement. Therefore it can be seen that upon purchasing a property in Jersey it is essential to ascertain which rights, restrictions and or obligations benefit or burden the land. That being said a right over a neighbouring property can be lost if not exercised for 40 years or more. No prescriptive acquisition It is not possible under Jersey law to acquire a right over a neighbouring property (such as a right of way) by long user, regardless of whether it can be shown that the right has been exercised for many years or always. No alteration of right Without the agreement of the parties recorded in a contract or deed passed before the Royal Court it is impossible to alter the

5 burden or nature of a right over Jersey immovable property. Accordingly if land is subject to a right in favour of a neighbouring property, it is not possible (without passing a deed or contract before the Royal Court) to alter the relevant location so as to make the right less valuable or more difficult to exercise. For example, placing a gate across a roadway over which another party has a right of way would be an infringement of this principle. In a similar fashion the owner may not exercise his or her right in such a manner as to increase the burden on the servient tenement. If the land constiting a dominant tenement is being developed so that its nature alters, there is a very real and serious risk that the burden upon the servient tenement will be altered. For example, the use of a right of way over a neighbouring property might be more onerous if the dominant tenement were to be developed from a house into a hotel or block of flats as this would result in many more users of the right of way (including all of the construction vehicles during the development). If the burden upon the servient tenement is altered in such a way or in any way then the dominant tenement may well lose the benefit of the rights and if him or herself or themselves continue to avail of those lapsed rights they will be doing so without right and title. This whole issue is referred to by property lawyers as the concept of aggravation of servitude. If a development is being contemplated it is always sensible to check with a legal adviser whether or not any essential rights might be lost by virtue of aggravation. Obligation to be a good neighbour Jersey customary law imposes a mutual obligation upon property owners not to use their property so as to cause detriment to a neighbour. This customary law principle, known as "voisinage" has been supplemented by the Statutory Nuisances (Jersey) Law 1999 which provides a remedy to aggrieved neighbours in certain circumstances. There are various cases regarding these obligations, but a classic example of circumstances in which the Royal Court might be expected to hold that this obligation has not been honoured would be where a property has been developed in such a manner that the neighbouring property is deprived of physical support or shelter from the elements. Enforcement If development is undertaken resulting in buildings or other constructions being established upon areas subject to building or other restrictions (common law or otherwise) the Royal Court can only order compliance with the restriction. Accordingly, the Court will order demolition as far as is necessary to comply with the terms of, or effect of, the restriction. The Court does not have the ability to award damages instead of compliance, although it may award damages in addition to an order for compliance. Conclusion In conclusion it can be seen that the Jersey legal position in relation to boundaries covenants and servitudes is far from straightforward. Therefore, if any development is proposed, detailed advice should be sought from a Jersey lawyer in order to ensure that the proposed development will not encroach upon a neighbouring property or breach any relevant restrictive covenants or servitudes. Contact: Gavin Renault, Property Practice Area Manager, Jersey gavin.renault@mourantozannes.com