Viberts acts for successful defendant in landmark property case

Monday 27 April 2015

The release of the judgment in the case of Fogarty v St Martin’s Cottage Limited last week has already been hailed as a welcome change to Jersey’s property law.

This ground breaking case, regarding a contested boundary between two properties in St Lawrence, means changes to conveyancing practice may now be expected because an option exists to remedy property encroachments by the payment of damages rather than ordering the removal of the encroaching structure.

This Royal Court decision steps away from the approach previously taken by the Jersey court in Félard Investments Limited v Trustees of the Church of Our Lady, Queen of the Universe, which determined the Jersey Court had no alternative but to order any encroachment on a neighbour’s land to be demolished.

This departure from the traditional Félard approach may be viewed as a much healthier attitude to encroachment issues and a quiet victory for the ‘reasonable man’. The Court’s decision that it should be able to order compensation following an examination of the site and the mischief caused by the encroachment allows a far more pragmatic solution, proportionate to the circumstances of the case. Neighbours involved in a dispute will now have to negotiate in the light of the nature and extent of the actual encroachment, which is likely to result in far fairer, and indeed quicker, settlements between the parties.

Advocate Christina Hall who acted for the defendant said: “The Royal Court’s decision to distinguish the Félard Investments case is a welcome development of Jersey property law. When a building encroaches on a neighbour’s land by an inch or two, and there has been no deliberate wrong doing, the court should not be powerless to do anything other than to order the encroaching structure be removed. In this particular case, the Court clearly thought it was inappropriate and unfair to demolish the defendant’s wall and instead ordered damages to be awarded. This decision marks a milestone in Jersey property law as this is the first time an encroachment dispute has been settled by an award of damages.”

While this latest ruling means changes to surveying and conveyancing practice are likely to follow, it will not prevent a land owner from seeking a court order to remove an encroaching structure from their land. A court can still order a structure to be removed if the facts of the case so warrant. The importance of the decision is that it now allows the Court to consider an alternative remedy, recognising that not all encroachments materially impact upon a land owner’s ability to enjoy his property.

Zoe Blomfield, Managing Partner of Viberts, said: “This is a significant win for Viberts and its client. In a case which set strict principle against sensible pragmatism, our team has marshalled the arguments and broken new ground, achieving a significant win for our client and for land law in Jersey. Sometimes you have to ask not just what the law is, but what it should be. Legislation is not the only way to make progress, case law can reflect the needs of our changing society as well. This ground breaking case is likely to change the way future boundary disputes are dealt with by the court and demonstrates Viberts’ expertise in helping to develop Jersey law.”