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Property Law in Jersey This thesis has been submitted in fulfilment of the requirements for a postgraduate degree (e.g. PhD, MPhil, DClinPsychol) at the University of Edinburgh. Please note the following terms and conditions of use: • This work is protected by copyright and other intellectual property rights, which are retained by the thesis author, unless otherwise stated. • A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. • This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the author. • The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the author. • When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given. PROPERTY LAW IN JERSEY Rebecca Frances MacLeod PhD The University of Edinburgh 2011 CONTENTS PREFACE ix DECLARATION xi ABSTRACT xiii BIBLIOGRAPHY AND ABBREVIATIONS xv INTRODUCTION 1 CHAPTER 1: FOUNDATIONS OF JERSEY PROPERTY LAW 5 A. INTRODUCTION 5 B. LEGISLATION 5 C. CASES 6 D. JURISTIC WRITING 9 E. CUSTOMARY LAW 14 F. GAPS 16 G. JERSEY: A MIXED JURISDICTION 16 H. FOREIGN LAW: SOME PROBLEMS AND SOME MERITS 18 I. WHICH SYSTEMS TO LOOK AT? 20 J. WHEN AND HOW TO LOOK AT OTHER SYSTEMS 22 K. CONCLUSION 24 CHAPTER 2: FEUDAL LAND TENURE 25 A. INTRODUCTION 25 B. FEUDAL LAND TENURE 25 C. DECLINE OF FEUDALISM 29 D. REFORMS IN JERSEY 30 E. MODERN LAW 33 CHAPTER 3: REAL RIGHTS 35 A. INTRODUCTION 35 B. WHAT IS A REAL RIGHT? 36 C. BRIEF HISTORY OF REAL RIGHTS 38 D. RIGHTS IN REM AND RIGHTS IN PERSONAM , AND “REAL” AND “PERSONAL” IN ENGLISH LAW 40 E. REAL RIGHTS IN JERSEY LAW: INTRODUCTION 41 F. REAL RIGHTS IN JERSEY LAW: WRITERS 42 (1) Terrien (1574) 42 (2) Poingdestre (late 1600s) 44 (3) Le Geyt (late 1600s – early 1700s) 45 (4) Basnage (1709) 45 (5) Pothier (works produced between 1740 and 1772) 47 (6) Pipon & Durell, Hemery & Dumaresq (1789) 48 (7) Le Gros (1943) 48 (8) Other Materials 49 G. REAL RIGHTS IN JERSEY LAW: LAWS 50 H. REAL RIGHTS IN JERSEY LAW: CASES 51 iii I. REAL RIGHTS IN JERSEY LAW LISTED 52 (1) Ownership 52 (2) Servitude: General 55 (a) Real servitude 56 (b) Personal servitude: usufruct 56 (3) Right in security 57 (4) Lease 60 (5) Real Obligation? 64 (6) Rights of the Beneficiary and Trustee of a Trust? 66 (7) Possession? 67 J. NUMERUS CLAUSUS 67 K. SUBDIVISION OF THE CLASS OF REAL RIGHTS 68 L. CONCLUSION 69 CHAPTER 4: CLASSIFICATION OF PROPERTY 71 A. INTRODUCTION 71 B. ARE RIGHTS THINGS? 73 C. CORPOREAL AND INCORPOREAL 74 D. MOVEABLE AND IMMOVEABLE 75 E. CHANGE OF CLASSIFICATION: ACCESSION 79 (1) Moveable-to-immoveable accession 79 (a) Attachment 84 (b) Intention 85 (c) Effect of removal 88 (d) Function 89 (2) The Test for Accession 90 (3) Compensation 91 (4) Accession of Fruits 92 F. CLASSIFICATION BY ANTICIPATION 93 (1) Moveables by Anticipation 93 (2) Immoveables by Anticipation 94 (3) Comparison 97 G. FISH AND OTHER ANIMALS 97 H. CLASSIFICATION OF RIGHTS 99 (1) Real Rights 99 (2) Personal Rights 99 (3) Real Obligation: Rente 100 (4) Leases 101 (5) Deeds 101 I. CONCLUSION 102 CHAPTER 5: VOLUNTARY TRANSFER OF IMMOVEABLE PROPERTY 105 A. THE PROCESS OF TRANSFER 105 (1) Initial Stages: Before the Contract Court 107 (2) The Contract Court 109 (3) The Nature of the Contract Passed Before the Court 115 (4) Registration of Hereditary Contracts 117 iv B. WHEN DOES TRANSFER OCCUR? 121 (1) Before 1602 122 (2) 1602 Act 124 (3) Subsequent Legislation 127 (4) Analysis: Passing Contract 131 (5) Analysis: Registration 132 (6) The Nature of the Hereditary Contract 137 C. REQUIREMENTS OF FORM 137 (1) Agreements Concluded Prior to the Contract Court 137 (a) Does the agreement need to be in writing? 137 (b) Requirement of a stipulated penalty clause in order to be able to claim damages? 142 (c) Reform 142 (2) The Hereditary Contract 143 D. ENFORCEMENT 144 (1) Enforcement of an Agreement Concluded Prior to the Contract Court 144 (a) No specific performance: nulle promesse à héritage ne vaut 144 (b) The reason for the rule: first justification 146 (c) The reason for the rule: second justification 148 (2) Acquisition of Possession 152 E. CONCLUSION 152 CHAPTER 6: INTRODUCTION TO, AND CREATION OF, SERVITUDES 155 A. INTRODUCTION 155 (1) Reception of Servitudes 156 (2) Definitions 156 (a) Servitude 156 (b) Positive (or affirmative), and negative (or passive) 157 (c) Real (or praedial), mixed, and personal 157 (d) Rustic (rural), or urban 157 (3) Balancing Rights 158 (4) Publicity Principle 158 B. EXPRESS CREATION 158 C. DESTINATION DU PERE DE FAMILLE 159 (1) History 159 (2) Jersey Sources 160 (3) A Qualification to the Application of Destination? 163 (4) Which Servitudes are Capable of Creation by Destination? 163 (a) Continuous 163 (b) Apparent 165 (c) Conclusion on continuous and apparent 166 (d) Urban 167 (5) Basis of Destination 168 D. ACQUISITIVE PRESCRIPTION 169 (1) No Acquisitive Prescription 169 v (2) Nulle Servitude Sans Titre 170 (3) Le Geyt on Acquisitive Prescription 172 (4) Quasi-prescription: Baudains v Simon 173 (5) Conclusion 176 CHAPTER 7: EXERCISE OF SERVITUDES 177 A. INTRODUCTION 177 B. SERVITUDES CREATED EXPRESSLY 178 (1) Arbaugh v Leyland 178 (2) Blackburn v Kempson 179 (3) Representation Blampied 181 (4) Haas v Duquemin 181 (5) Colesberg Hotel v Alton Hotel 182 (6) Cotillard v O’Connor 184 (7) La Petite Croatie v Ledo 184 (8) Interpretation of Servitudes Created Expressly 187 C. SERVITUDES CREATED BY DESTINATION 188 D. SERVITUDES CREATED BY PRESCRIPTION 189 E. PURPOSE 189 (1) Le Feuvre v Mathew 190 (2) Default Rule 192 F. MANNER OF EXERCISE OF SERVITUDES OF ACCESS 193 G. USE ONLY FOR THE BENEFIT OF THE DOMINANT TENEMENT 193 H. IMPLIED CONTENT 194 (1) General 194 (2) Illustration of a Test: Moncrieff v Jamieson 195 I. CIVILITER PRINCIPLE 197 J. AGGRAVATION 199 (1) Nature of Aggravation 199 (2) Effect of Aggravation 201 K. RESIDUAL RIGHTS OF THE SERVIENT OWNER 202 (1) No Positive Obligation 202 (2) Negative Obligation Not to Diminish the Servitude 202 CHAPTER 8: EXTINCTION OF SERVITUDES 205 A. INTRODUCTION 205 B. AGREEMENT 206 C. CONFUSION 206 D. DÉGRÈVEMENT 207 E. EXPROPRIATION 208 F. EXTINCTIVE PRESCRIPTION 209 G. PARTIAL PRESCRIPTION 211 H. DESTRUCTION 214 I. END OF FIXED TERM 214 J. FULFILMENT OF RESOLUTIVE CONDITION 214 K. AVOIDANCE OF TITLE TO LAND 215 vi CHAPTER 9: VOISINAGE AND NUISANCE 217 A. INTRODUCTION 217 (1) English Law and Nuisance 219 (2) Some Mixed Jurisdictions 221 (3) French Law: Troubles Anormaux ou Excessifs de Voisinage 222 (4) Similarities and Differences 226 B. VOISINAGE AND NUISANCE IN JERSEY 228 (1) Early Cases and Materials 228 (2) Key v Regal and Searley v Dawson 233 (3) After Searley 236 (4) Rockhampton Litigation 238 (5) After Rockhampton 240 C. HOW MANY DOCTRINES? 241 (1) Nuisance Only 242 (2) Voisinage Only 243 (3) Two Doctrines with Identical Spheres of Application 243 (4) Two Doctrines with Overlapping Spheres of Application 244 (5) Two Doctrines with Distinct Spheres of Application 244 D. DOCTRINAL BASES 245 (1) Nuisance 245 (2) Voisinage 246 E. PREREQUISITES FOR LIABILITY 248 (1) Nuisance 249 (2) Voisinage 253 (3) Conclusion 254 F. LIMITS OF LIABILITY 255 (1) Personal Injury 255 (2) Identity of Parties 256 (a) Who can be sued? 256 (b) Who can sue? 257 (3) Defences 257 (4) Remedies 258 G. NEIGHBOURHOOD LAW 259 H. CONCLUSION 260 FINAL CONCLUSION 263 vii PREFACE In the 2011 Tour de France , Mark Cavendish – a native of that other Crown Dependency, the Isle of Man – won five stages and finished the race with the Green Jersey. When asked to reflect on his performance, his constant refrain was that, although he finished the race with his hands in the air, he could not have done so without the capable and dedicated support of his team. Similarly, although writing a thesis is a task for one, it cannot be done alone; my thanks to all who have assisted me. Particular mention must be made of the Channel Islands Education Trust, which funded the first three years of my study, Sir Philip Bailhache, who brought the idea of this thesis and the means to do it together, 1 Advocate Dr John Kelleher, Advocate Gordon Dawes (and Andrea Holford), and my long-suffering supervisors: Professor Kenneth Reid, and Professor George Gretton. I am also grateful to the late Hazel Bailey, and all who helped me at the Guernsey Archive (particularly Dr Darryl Ogier), the Jersey Archive, the Jersey Institute of Law (particularly Lori-Ann Foley), the Jersey Judicial Greffe, the Jersey Law Officers Department, the Jersey Public Library, the Jersey Society Library, and the Priaulx Library in Guernsey. Additionally, I – and the chapter on voisinage and nuisance in particular – benefited greatly from time spent at the Max Planck Institute for Comparative and International Private Law in Hamburg, both in the library and with Professor Zimmermann’s Lehrstuhl . A full list of thanks would be very long indeed. Merci à tous . Chan urrainn dhomh crìoch a chur air seo gun taing chridheil a thoirt do Sheonaidh, an duine agam, oir is ann airson a bha a’ chuid a bu mhotha de chudthrom a’ ghnothaich. A-nise feumaidh mise mo dhìchioll a dhèanamh air a shon-san… 1 800 Years 291. ix DECLARATION I, Rebecca Frances MacLeod, declare that I have composed this thesis, that it is my own work, and that I have not submitted it for any other degree or professional qualification.
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