The Project de Loi entitled The Access to Neighbouring Land (Guernsey) Law, 2016 was registered on 16 January 2017, although it remains subject to Royal Assent. The new legislation provides that where a person requires entry onto neighbouring property for the purpose of carrying out work and needs, but does not have, the consent of the neighbour to do so, then that person may apply to the Magistrate's Court for an access order.
The new legislation will address an age-old issue with some Guernsey properties that are built on or near the boundary with a neighbouring property, particularly in St. Peter Port. In the past, the owners of those properties required a formal right of access onto the neighbouring property for the purposes of maintenance and repairs to their own property. Those rights were usually incorporated in the title documents, however, for many properties those rights have never been formally documented and property owners simply relied on the goodwill of their neighbours. Banks have become more reluctant to lend for the purchase of properties without the necessary formal rights and sellers have been required to seek a formal agreement with their neighbour prior to proceeding to sell. This has resulted in increasing the time taken to convey some properties and also added to the expense of the overall process.
When might an access order be granted?
The circumstances in which the Magistrate's Court may grant an order are, subject to the caveat below, when the work is reasonably necessary to preserve, repair or maintain the applicant's property or part of his property and that such work could not be carried out or would be substantially more difficult or expensive to carry out without such access. However, the Magistrate's Court may not make an order if it would cause the neighbour (or any other person) any hardship which outweighs the benefit to the applicant in being allowed to undertake such works.
In addition, the new legislation provides that an access order may be granted to an applicant in respect of entry onto neighbouring property for the purposes of preserving, repairing or maintaining services to this property or a jointly owned boundary structure. The authority of the applicant under the access order is conditional upon the applicant giving reasonable written notice (at least 7 days unless there is a risk of injury or significant damage) to the neighbour specifying, amongst other things, the nature, location and timing of the works, and that the services in respect of which the access is required were installed prior to the coming into force of this legislation. The notice may not specify that the proposed works be carried out on a non-working day except in the case of an emergency. Where the applicant has served such a notice and has not completed the works but is then contacted by another person with an interest in the land, then the applicant will continue to be permitted to access the land to undertake the work provided that the content of the notice complies with the provisions of the law. The new legislation sets out in detail how such notice may be served.
Appeals and compensation
The recipient of such a written notice may apply to the Magistrate's Court for a declaration that the conditions for the access order are not satisfied or for an order imposing terms and conditions in respect of exercising such access. Pending the outcome of this process, the person requiring access must not enter upon the land in question or must withdraw if access has already been made.
The new legislation includes provisions whereby the recipient of a written notice (as described above) or the owner of property served by services installed in neighbouring land may, within certain timescales, apply to the Magistrate's Court for compensation (or the Royal Court depending on the size of the claim). Such compensation may be payable in respect of financial loss, loss of privacy or inconvenience suffered due to the maintenance works or interference with the services. In addition an application maybe made for an order in respect of the repair or replacement of services.
Terms of an access order
The new legislation lists in detail the types of work in respect of which an access order may be granted.
Each access order shall specify certain terms on which it is granted, for example, the order shall specify the work for which it has been granted, the area of neighbouring land which the applicant is authorised to access and the date or time period for which access is granted. In addition, the order may impose such reasonable conditions as appear to be necessary to avoid or restrict any loss, damage, injury, inconvenience or personal injury to the owner of the neighbouring land or to any other person.
Effect of an access order
The effect of an access order is to require that the owner of the neighbouring land permits, insofar as he has the power to do so, the applicant or his agents to do anything which the order authorises or requires them to do. Under the order the applicant may enter onto the neighbouring land to carry out the specified works and bring onto and leave on that land the necessary materials and equipment to carry out such works, subject to indemnifying the neighbour against any damage caused to any of their land or goods. On completion, the applicant must remove any waste and make good any damage to the neighbour's property.
Where an access order has been made, any party to the proceedings in which the order was made, or any other person upon whom the order is binding, may apply to the Magistrate's Court to discharge or vary the order or any of its terms and conditions, suspend any of its terms or conditions or revive any term or condition that has previously been suspended.
It should be noted that nothing in this new legislation will prevent a person from raising the Clameur de Haro, an ancient form of injunction which has been invoked historically as a means of dealing with property related disputes.
Registration of access orders
Access orders will be registered at the Greffe in Guernsey and will be binding not only on the applicant and the neighbour, but also upon their respective successors in title.
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.