At its recent sitting in June 2016 the States of Guernsey
approved a slightly amended Projet de Loi entitled "The Access
to Neighbouring Land (Guernsey) Law, 2016" following on from
the States resolution in 2014 to introduce such legislation.
Access to Neighbouring Land – Boundary Walls Owned by
For some years home owners, estate agents and practitioners have
been acutely aware of a problem that existed in respect of some
Guernsey properties. Where a property (which we will call
"Property A") has been built on, or close to, a boundary,
the owner of that property will need access on to the
neighbour's land ("Property B") in order to carry out
maintenance. In most cases the owner of Property A will have a
formal right of access in title (set out in the title deeds of
their property) on to Property B in order to carry out those
In some cases no such right exists. There may be a number of
reasons for this; perhaps an extension has been built on the
boundary, or perhaps it was thought that a formal right was not
necessary because neighbours had always got on well and there was
never any question of not being allowed access. In more recent
times banks, once made aware of the issue, might have refused to
lend against a property that needed a right of access, but did not
have it. This forced the seller into approaching his neighbour to
seek a formal agreement whereby the neighbour granted such a right.
On a few occasions neighbours, sometimes for good reason, refused
to grant such rights and the sale of a property fell through
– and even became unsellable. In a very few instances the
neighbour demanded significant sums of money in consideration of
The new law, once it is in force, will allow the owner of
Property A (who has been denied access) to make an application to
the Magistrate's Court - previously this was going to be the
Royal Court - seeking an "access order" over Property B.
If the court is satisfied that the work is necessary and cannot be
carried out without such access being granted then it will make the
order. The court may not make an order where it is satisfied that
entry would cause hardship to the owner of Property B that would
outweigh the benefit to the owner of Property A. The type of work
that might be permitted by an access order will include all normal
The court will specify in the order the type of work that can be
carried out, the area of land over which access may be exercised
and the period during which the order is effectively. This is a
change from the 2014 proposals - no order will now be of unlimited
duration. The court may attach conditions to the order, including
times when work may be carried out, precautions that may need to be
taken and, possibly, compensation where there is "substantial
loss of privacy" or "substantial inconvenience
suffered". It is thought that compensation will be awarded
only on very rare occasions.
It is also thought that on most occasions it will be unnecessary
to make an application for an access order because neighbours,
knowing that an application can be made easily and will almost
certainly be granted, will negotiate the terms for such access
between themselves without the inconvenience of a court
Access to Neighbouring Land – Services and Party Owned
The new law also makes provision for access on to neighbouring
land to carry out works to services (sewers, drains, gutters,
pipes, cables, wires, etc.) that run under or over neighbouring
land, and boundary features that are party owned. The process is
slightly different and involves the service of a notice called a
"servitude tacite", and only applies to services
that were in place before the coming into force of the new law. A
landowner aggrieved by the service of a servitude tacite
notice will be able to apply to the court for a declaration or
order varying the terms of the notice, or seeking compensation for
any "significant financial loss", "substantial loss
of privacy" or "substantial inconvenience
The draft law also states that where services have been laid,
then they shall not be subject to unreasonable interference.
What does this mean?
It is hoped that the new law will be in force later this year or
early next year. In the meantime it is likely that a properly
advised purchaser or lending bank will take a pragmatic view when
considering purchasing or lending against a property which lacks
such rights in title. As a result there will be fewer delays on
conveyancing transactions while a purchaser waits for a vendor to
complete an agreement with the neighbour for a right of access. It
should also mean that an owner who had previously been unable to
sell his or her property because of such issues my now find buyers
more willing, and able, to proceed.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Probably the most significant change from previous practice in Guernsey law under the Companies (Guernsey) Law 2008, which came into effect on the 1 July 2008, was the consignment to history of the concept of capital maintenance, which was discarded in favour of a solvency model as the basis of a company’s ability to pay distributions and dividends.
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