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
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
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.
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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The process for obtaining planning permission for development of property in the Cayman Islands has been updated as a result of the latest revision of the Development and Planning Law and accompanying regulations (July 2015).
In principle, when the parties agree to arbitrate, they shall be
bound by that agreement. It should therefore follow that when a
party initiates arbitration proceedings, the other party - the
respondent – will avail itself of the opportunity to present
its case and participate in the proceedings.
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