One of the things which may seem bizarre about the Jersey
conveyancing process is the apparent obsession with boundaries.
Conveyancers acting in property purchases go on site to make
sure that no part of any building or other construction encroaches
on any neighbour's land. Encroachment covers not only building
on a neighbour's land but also building on the 16 ˝ inch
offset of a boundary structure or having a window or other opening
less than 2 feet 9 inches from the boundary. Arguments about actual
or alleged encroachments are one of the main things that can hold
So what, you may ask, if the roof overhangs the next door
property by a couple of inches or one of the windows in the nice
new extension is only 2 feet from the boundary; surely this
couldn't put you at risk? The problem, though, is the
traditional approach of Jersey law to encroachments, which has been
that the party whose property has been encroached on is entitled to
a court order requiring removal of the offending items. For
technical reasons of Jersey property law the courts have up to now
found themselves unable to award damages as an alternative to
removal of the encroachment.
It is widely thought that when the issue next comes before the
Royal Court a more pragmatic approach may be adopted. But for now
conveyancers have to continue to proceed with caution, in the
knowledge that the worst case scenario would be an order requiring
removal of an encroachment. Of course, most property owners do not
actively seek out and pursue encroachments by their neighbours but
it only takes a falling-out between neighbours for any reason at
all for the parties to look for any ammunition which can be used in
What then can be done by a purchaser if encroachments come to
light in the conveyancing process? There are two principal
solutions. The first is to secure the relevant neighbour's
participation inthe contract of purchase in order to agree that the
encroachments can remain in perpetuity. This amounts to a complete
'cure' of the problem, preventing the neighbour and the
neighbour's successors in title from ever challenging the
encroachment. On the whole, neighbours tend to be prepared to
co-operate, especially if the encroachment in question is minor and
all the more so if the neighbour is also a sinner as well as being
sinned against in terms of encroachments or other title
irregularities: in such a case, both parties come away with a
rectified title. The norm is for participating neighbours to
require their legal fees to be paid.
The other principal solution is defective title insurance. This
involves an insurance company, in return for a one-off premium,
providing a specified level of insurance cover in the event that
the neighbour takes legal action in respect of the encroachment in
question. The level of cover is dictated by the expected cost of
removing the encroachment, which could of course involve partial
demolition and rebuilding in certain cases. Although, as mentioned,
a party whose property is encroached upon may ultimately be able to
obtain a court order requiring removal, it is likely in many cases
that they would accept a monetary settlement. If an encroachment
claim is brought, the insurers will defend the claim on behalf of
their insured and thus have the opportunity to seek to conclude a
Not all encroachments are suitable for insurance. Clearly
insurers will only be likely to take on risks where they perceive a
low risk of a claim being made. A long-standing encroachment which
has never been complained about by the neighbour would be a prime
example of a risk which would be attractive to insurers.
Encroachments which exist without challenge for forty years or more
are, in fact, protected by the law of prescription (limitation) and
the closer to this age an encroachment is the more attractive the
risk generally is to insurers. It must be stressed, however, that
insurers will never agree to provide cover where there have been
communications with the neighbour in relation to the encroachment.
If, therefore, a neighbour is asked to participate in the contract
of purchase and declines to do so, insurance will not be an
Encroachments require careful consideration: what is the nature
and extent of the encroachment; what is the ultimate downside; what
is the most sensible course of action in the circumstances? An
experienced conveyancer will be able to analyse the issues,
negotiate with the other parties concerned and, most importantly,
provide clear and helpful advice and guidance to the client.
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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