A judgement of the Royal Court released last month in a property dispute case (Fogarty v St Martin Cottage Limited) breaks new legal ground in Jersey land law whereby the Royal Court found for the very first time that in the event of a proven encroachment by one property onto the adjoining property of another, it would seek to award damages rather than the previous case law of enforced removal of the actual physical encroachment. The Court will use its full discretion and will no longer simply rely upon the facts of where the actual legal boundary should be.
We are often asked by clients why is it that freehold property or land in Jersey is conveyed by the passing of a contract before the Royal Court on a Friday afternoon? This is beautifully clarified in the preliminary discussion of the above judgement, where the Court remarked:
"For many centuries the structure of the laws affecting land and succession in Jersey was such that contracts of sale were relatively uncommon, but nonetheless it remains true that from time immemorial, transactions in land have been completed by means of a contract sworn by the contracting parties before the Royal Court.
Having confirmed with the parties that they are aware of the contents of the deed, the Bailiff (or the Deputy Bailiff or Lieutenant Bailiff) administers the oath to the contracting parties – "Do you swear that you will neither act nor cause anyone to act against this deed of [sale of house outbuildings and appurtenances] in perpetuity upon pain of perjury?"
It is the act of taking that oath which completes the transaction in real estate and the Court then has the original contracts enrolled in the Public Registry where they are available for inspection by everyone. The original deed is then returned to the transacting party, but has no intrinsic value. Accordingly, a person is able to ascertain the ownership of Jersey real estate by a check in the Public Registry of this Island; and because the practice is to ensure that there is included within the contracts passed before the Royal Court a full description of the property which is the subject of the transaction, with its boundaries and servitudes affecting it, the Public Registry search establishes certainty for those who are transacting in other respects with the landowner in question."
The Court went on to say, "Of course it is possible for contracts which are passed before the Royal Court in the form which we have identified to be the subject of an order by the Court for rectification on the usual grounds, or on occasion to be set aside in their entirety on any ground which would give rise to an ordinary contract being set aside. The fact that the subject matter of the contract is land as opposed to anything else does not mean that the ordinary law of contract does not apply. Of course it does."
So the next time you put on your Sunday best and make that all important trip up to the Royal Court to take the Oath and pass your contract of sale or purchase, you really are entering into one of the most important contracts in modern day life, which in most cases will relate to your all important home.
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