Property - interpretation of servitudes
[2022]JRC077
Royal Court
(Samedi)
29 March 2022
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Before :
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J. A. Clyde-Smith O.B.E. and Jurats Crill
and Cornish
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Between
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Jean Pierre Vernon Falle
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Representor
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And
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Michael Charles Russell
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First Respondent
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And
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Karen Anne Russell
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Second Respondent
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IN THE MATTER OF THE REPRESENTATION OF
JEAN PIERRE FALLE
AND IN THE MATTER OF LA CÔTE
Advocate G. D. Emmanuel for the Representor.
Advocate A. D. Hoy for the First and Second
Respondents.
judgment
the COMMISSIONER:
1.
This case
is concerned with the interpretation of servitudes binding upon two
neighbouring properties, namely La Côte which is owned by the Representor
(“Mr Falle”) and the Beach House, which is owned by the Respondents
(“Mr and Mrs Russell”).
2.
On 18th
December 1981, Mr Falle and Mr John Arthur William Baker (a friend and business
partner of Mr Falle) jointly purchased land for development fronting the Royal
Bay of Grouville from Mr Francis Derek Parlett. They divided it into six plots selling
four and retaining the two coastal plots for themselves, on which they intended
to build a maisonnette each, Mr Baker having the northern plot, which he
named the Beach House and Mr Falle, the southern plot, which he named La
Côte.
3.
The
conveying of the two coastal plots out of their joint names into their
respective sole names was accomplished by three contracts passed on 13th
September 1985 by the usual technique of their conveying by gift their joint
ownership of the two plots into the name of a third party, Mr Anthony Glen de
Ste. Croix (a conveyancer), who in turn conveyed by gift the Beach House to Mr
Baker and La Côte to Mr Falle. In the two contracts of conveyance from
Mr de Ste Croix into the names of Mr Falle and Mr Baker, a number of rights and
obligations were imposed, which were intended to be mutually enforceable as
between the owners of the two plots and to bind their successors in title. It is not in dispute that the provisions
with which the Court is concerned constitute servitudes.
4.
The two
contracts by which they became the sole owners of their respective plots were
structured in the usual way, giving a description of the jointures of
the two plots, establishing lines of demarcation between the two plots and
other neighbouring properties, setting out a number of pre-existing
restrictions affecting both plots (which included restrictions over what could
be built namely one bungalow or maisonnette with height restrictions per
plot), and finally, setting out a number of provisions as between the two
plots. At that time nothing had
been built on either plot and the boundary between the two was an imaginary
line drawn between two boundary stones.
5.
The first
provision over which there is no dispute allowed Mr Falle to establish the wall
of an underground garage he intended building up against the line of
demarcation between the two plots, the foundations of which could extend on to
the Beach House.
6.
Working
from the contract by which Beach House was conveyed to Mr Baker, Clauses 11 and
12 are in these terms:
“11. Que ledit Sieur Falle
aura le droit de faire bâtir la face Nord du mur de nord
de certain soubassement qui formera
partie de certaine
maisonnette ou ‘bungalow’ que ledit Sieur
Falle a l’intention de construire
sur partie dudit becquet de terre à lui appartenant jusquà ladite ligne de demarcation du Sud dudit
becquet de terre présentement donné,
quitté, cédé
et transporté le séparant
d’avec ledit becquet
de terre appartenant audit
Sieur Falle et que les fondations dudit
mur du Nord dudit soubassement
pourront s’étendre
sur ledit becquet de terre présentement donné,
quitté, cédé
et transporté et ce au Nord et au pourportant dudit mur et une fois érigé ledit
mur sera et demeurera la propriété,
sans relief, dudit Sieur Falle; étant
toutefois entendu que ledit
Sieur Falle n’aura jamais aucun
droit d’accès sur ledit becquet de terre présentement donné,
quitté, cédé
et pour les maintien, entretien,
reparation ou remplacement éventuels dudit mur dudit soubassement.
12. QUE ledit Donataire
[Mr Baker] aura droit de jointure contre ledit mur du
Nord dudit soubassement que
ledit Sieur Falle a l’intention de construire sur partie dudit becquet de terre à lui appartenant.”
7.
As can be seen from these two provisions, the owner of La Côte has
no right of access on to the property of the Beach House in order to maintain
this basement wall and the owner of the Beach House has the droit de jointure
to it.
8.
That basement wall was built by Mr Falle in accordance with this
provision, and it extends some feet above the surface of the ground of the
Beach House. It is agreed that its
northern face is on the line of demarcation between the two plots.
9.
It was some years before work on the construction of the two maisonnettes
commenced and from photographs provided to the Court, it would seem that they
were built in 1986 at approximately the same time, with La Côte being
completed before that of the Beach House.
10.
We now come to the two Clauses the interpretation of which is in
dispute. Mr Falle intended to build
the northern gable of the maisonnette he was constructing on La
Côte against the basement wall and thus some six inches (being the
approximate width of the basement wall) from the boundary with the Beach
House. The owner of the Beach House
was given a droit de jointure against that northern gable, once
established, and the owner of La Côte was given a right of access over
part of the Beach House to maintain that northern gable. We set out the two Clauses from the
Baker contract, and as these are the key provisions, we also set out
translations agreed by the parties:
“13. Que d’autant
que ledit Sieur Falle se propose de construire le pignon du Nord de ladite maisonnette ou
‘bungalow’ qu’il a l’intention de construire
sur partie de sondit becquet de terre au dessus de la partie Sud dudit mur du Nord dudit soubassement et que d’autant
que par suite de telle construction la face Nord dudit pignon du Nord de ladite maisonnette proposée
se trouvera à six pouces
ou environ au Sud de ladite
ligne de démarcation
du Sud dudit becquet de terre présentement donné, quitté, cédé et transporté
le séparant d’avec
ledit becquet de terre appartenant audit Sieur
Falle, ledit Donataire aura
droit de jointure contre ledit
pignon dès que ledit pignon aura été érigé
et ce nonobstant le fait
que ledit Donataire devra exercer ce
droit sur une lisière
de terre au Nord et que pourportant
dudit pignon d’environ six pouces royaux de laize (allant du Sud au Nord) et que ladite
lisière reste toujours audit Sieur Falle; avec tous
droits d’accès nécessaires
audit Donataire sur ladite lisière d’environ
six pouces royaux de laize avec ou sans ouvriers, matériaux, êchelles et échafaudages
afin de se server de sondit
droit de jointure; étant entendu
que ledit pignon du Nord de
ladite maisonnette ou
‘bungalow’ que ledit Sieur Falle a l’intention de construire comme sus est dit
sera construit en briques ou en
pierres ou en briques et pierres,
le tout visible et non ravalé.”
“13. That
whereas Mr Falle is proposing to build the North gable of the maisonette or bungalow which he intends to build on part of
his plot of land on the South part of the wall of the North and whereas, due to
such construction, the North face of the gable of the maisonette
or bungalow will be situate 6 inches or thereabouts to the South of the
boundary line of the South of the plot of land now gifted, separating it from
the plot of land owned by Mr Falle, the Donee shall
have the right to join against the gable when it shall have been constructed,
notwithstanding that the Donee shall exercise this
right on a 6 inch wide strip of land to the North and co-extensive with the
gable (running from South to North) and that the strip of land remains owned by
Mr Falle, with all necessary rights of access to the Donee
on to the 6 inch wide strip of land, with or without workmen, materials,
ladders and scaffolding in order to provide his right of jointure; it being
understood that the said gable of the North of the maisonette
or bungalow and which Mr Falle intends to construct, shall be built in brick or
stone or in brick and stone, the whole visible and not rendered.”
“14. “QUE, sujet toutefois audit droit de
jointure accordé audit Donataire
[Mr Baker] en vertu de la Clause ‘treize’ du présent contrat, ledit Sieur Falle aura
droit d’accès avec ou
sans ouvriers et matériaux
lorsqu’il deviendra nécessaire sur partie dudit becquet
de terre présentement
donné, quitté
et transporté afin
de maintenir , entretenir, réparer ou remplacer ledit pignon du Nord de ladite maisonette ou
‘bungalow’ qu’il a l’intention de construire comme sus est dit
et ce sur une laize de trois pieds royaux au Nord et au pourportant dudit pignon seulement;
à la charge audit Sieur Falle d’achever lesdits
travaux aussi vite que
possible, de causer le moindre d’inconvénient
possible audit Donataire et de remettre
les lieux affectés en bon état de reparation une fois lesdits
travaux achevés.”
“14. That,
subject at all times to the right of jointure to the Donee
by virtue of Clause 13 of the present contract, Mr Falle shall have a right of
access with or without workmen and materials, whenever necessary on to part of
the plot of land now gifted in order to maintain, upkeep, repair or replace the
said gable of the North of the maisonette or bungalow
which he intends to construct as above said and this on a width of 3 feet to
the North and co-extensive from the said gable only; Mr Falle being charged to
carry out the works as quickly as possible, causing the least inconvenience
possible to the Donor and to restore the affected areas to a good state of
repair once the works have been completed.”
11.
We will refer to the area of 3 feet from the northern gable of La
Côte and co-extensive with it as “the Access Area”.
12.
The contract goes on to provide for the building of walls separating the
two plots, the wall from the eastern end of the basement wall going eastwards
towards the coastal path being jointly owned and the wall from the western end
of the basement wall (which Mr Falle was obliged to build) going westwards
being owned by Mr Falle, without relief, and with a droit de jointure
by Mr Baker. Mr Falle has a right
of access over an area of 1½ feet of the Beach House with or without
workmen and materials in order to maintain, upkeep, repair or replace the
wall. Those walls have been built
in conformity with the contractual provisions without any openings thus
completely separating the two plots.
13.
All of these provisions are replicated in the contract by which La
Côte was conveyed to Mr Falle.
14.
According to the evidence of Mr Falle, when it came to the building of
his maisonnette, he showed Mr Baker the plans, which provided for the
northern gable to be in black engineered bricks with cement rendered infill,
which he said was popular at the time.
Mr Baker felt that a black wall facing his house would be depressing and
accordingly, they came to an amicable agreement that Mr Falle would construct
the northern gable of La Côte to match the southern gable of Mr
Baker’s house and it was therefore constructed with cavity concrete
blockwork and rendered. He said
that due to an oversight, the contracts were never varied to reflect this.
The method
statement produced by Mr Falle’s engineers in December 2021, for the
works he proposes doing to the northern gable of La Côte, states that it has been
constructed with a 140 mm wide blockwork inner leaf, a 50 mm clear cavity (with
ties) and a 100 mm blockwork outer leaf.
They think that in accordance with usual building practice the inner
leaf only is load bearing. We will refer to the northern gable of La Côte as
“the northern gable”.
15.
Beach House was sold by Mr Baker to a Mr and Mrs Biscoe on 23rd
October 1996, who in turn sold to Mr and Mrs Russell on 13th March
2000, and these provisions were repeated in each contract.
16.
Problems arose between Mr Falle and Mr and Mrs Russell in 2007/8 over
certain works which Mr Falle carried out at La Côte. It is not the task of this Court to go
into the rights and wrongs of the difficulties that arose, or to express any
view as to the stance taken by either party. Suffice it to say that according to Mr
and Mrs Russell the process undermined any goodwill that they had towards Mr
Falle, and their position in short is that he no longer has any right of access
to the Access Area to carry out works to the northern gable that he has built
in breach of Clause 13 and they will not allow any such access on to the Beach
House. In particular, they will not
allow any scaffolding to be erected on any part of the property of the Beach
House. At the same time, they have
no intention of enforcing the provision that the northern gable of La Côte should be
constructed in bricks or stone.
17.
In 2011, Mr Falle marketed La Côte for sale, but the purchase fell
through because the purchaser’s lawyers took the view that Clause 13 had
been breached, in that the northern gable had not been constructed in bricks or
stone, a breach which they said could be enforced by the owners of the Beach
House, at least until the expiry of forty years, which would be some time in
2026.
18.
In order to resolve the issue and to render La Côte saleable, Mr
Falle proposes to take down the outer leaf of the existing concrete cavity wall
of the northern gable, and replace it in brick, using scaffolding erected over
the Access Area. Mr and Mrs Russell
will not permit such access and therefore by his Representation of 23rd
February 2021 (later amended), Mr Falle seeks a declaration that he may
exercise the right of access with scaffolding to the Access Area for this
purpose. The Representation was
premised upon an acceptance by Mr Falle that there had been a breach of Clause
13 by his failure to build the northern gable in bricks or stone.
19.
At the hearing, the question was raised by the Court in discussion as to
whether there had been a breach of Clause 13, and it was therefore agreed that
the following issues would be determined by the Court:
(i)
Was Mr Falle required under Clause 13 to build the northern gable of La Côte in bricks
or stone?
(ii)
Does Mr
Falle have a right under Clause 14 to use the Access Area for the purpose of
replacing the outer leaf of the existing northern gable with bricks or stone or
generally of maintaining, upkeeping, repairing or replacing the northern gable
as currently constructed?
(iii) Does Mr Falle have an implied right under
Clause 14 of access onto and over the Beach House in order to get to and from
the Access Area?
(iv)
Does Mr Falle have an implied right under Clause 14 to erect scaffolding
on the Access Area?
Principles of construction
20.
As the Court of Appeal said in La Petite Croatie Limited v Lido and
Gale [2009] JCA 221 at paragraph 11:
“…the task [of construing the
contract] is to be approached by reference to the well known principles
governing the construction of documents generally.”
21.
Those general principles were summarised by the Court of Appeal in La
Petite Croatie Limited and in Parish of St Helier v Minister for
Infrastructure [2017] JCA 027. However,
as the Court of Appeal said in The Colesberg Hotel
(1972) Limited v Alton Hotel Limited [2003] JCA 083 at paragraph 3:
“One main feature of the Jersey law of
servitudes is that there is a presumption in favour of the freedom of land from
excessive burdens of servitudes.
Where servitudes derive their “titre” from a contract or
deed, the effect of this presumption is that in interpreting the words of the
contract or deed, in so far as there is any ambiguity, the ambiguous words are
to be interpreted in favour of the freedom of the servient tenement. This presumption for freedom in relation
to servitudes has recently been applied by this Court in Haas v Duquemin
[2002] JLR 27.”
22.
For the purposes of this case and subject to the constraints we refer to
below, we would extract the following general principles:
(i)
The aim is to establish the presumed intention of the makers of the
contract from the words used.
(ii)
Evidence of subjective intention, drafts and negotiations and other
matters extending to the contract in question is inadmissible as is evidence of
events subsequent to the passing of the contract.
(iii)
All words and phrases have to be read in the context of the contract as
a whole.
(iv)
The words must be construed against the background of the surrounding
circumstances or matrix of facts existing at the time the contract was passed
and taken to be known to the makers at the time.
(v)
Words should as far as possible be given their ordinary meaning.
(vi)
So far as there is any ambiguity, the ambiguous words are to be
interpreted in favour of the freedom of the servient tenement (as per The
Colesberg Hotel (1972) Limited v Alton Hotel Limited).
23.
In applying these general principles of interpretation, there are severe
constraints upon the Court looking beyond the contract itself when construing
servitudes. As the Court of Appeal
said in Haas (née Daniel) v Duquemin and Duquemin (née
O’Toole) 2002 JLR 27 at paragraph 20 (in the context of the
application of Pothier’s Rules of Construction of Contracts):
“20. While I recognize that
Pothier’s rules on the construction of contracts may be useful in some
circumstances as an assistance in the interpretation of deeds which confer real
rights of property (see Le Pennec v Romeril (3)), I think that care is
required in their application. Pothier, in setting out those rules, was
addressing the law of obligations where the intention of the contracting
parties are the prime consideration.
In the law of property, however, a deed sets out real rights which
affect others than the initial parties to the deed, and there are special
rules, such as the presumption for freedom in relation to servitudes, which I
will mention shortly”.
24.
As explained in the Property Law in Jersey by Rebecca Frances
MacLeod (2012) at page 194:
“Where
property rights are not concerned, the aim of interpretation can be to strive
to give effect to the agreement between the parties, for it is only the parties
to the contract who will be affected.
This cannot be so for hereditary contracts. Property rights affect third parties;
those third parties must be able to ascertain the precise nature of the
right. This is achieved by
publicity. The servitude was
created expressly by registered deed.
Therefore, the extent of the servitude must be apparent from the face of
the register. If this is not so,
how can a party know what binds him? This point is particularly strong
where….the servitude is negative, for there will be no sign of it on the
land.”
25.
In the context of ascertaining the background circumstances or matrix of
facts, the Court of Appeal in La Petite Croatie Limited approved
regard being had to other contracts passed in relation to the same development
and to a planning permission granted shortly before the relevant contract was
passed (paragraph 15), a publicly available document, and in the Parish of
St Helier v Minister for Infrastructure, the Court of Appeal approved
regard being had to what were described as sparse publicly available background
material in the interpretation of provisions in the contract which it was found
did not constitute servitudes (paragraph 14).
26.
Property Law in Jersey
goes on at page 196 to say that from the cases a clear method for the
interpretation of servitudes emerges:
“First,
and obviously, the hereditary contract constitutive of the servitude should be
examined. Where there is ambiguity, the probable intention of the parties to
the contract constitutive of the servitude is sought. To this end, it may be
necessary to look at the relevant Clause in the context of the of the whole
document, or even other hereditary contracts pertaining to neighboring plots.
If there is still ambiguity, the hereditary contract must be construed in
favour of the servient land (in keeping with the presumption that land is free
from burdens) subject to exception in cases where this would result in great
hardship on the dominant tenement”.
27.
We think this is a fair summary of the approach, save that in our view
and within the constraints mentioned above, the general principles for the
interpretation of contracts remain a useful aid to the interpretation of servitudes.
In this case, we have obviously had
regard to the relevant clauses, to the two contracts passed before the Royal
Court on 13th September 1985 as a whole in which they are contained
and to those contracts referred to above which preceded them, all of which
provide the necessary background to the establishment of the servitudes, namely
the purchase of the land by Mr Falle and Mr Baker for development, the sale of
four plots, the retention of two plots for themselves, their intention to build
a maisonnette on each of their plots, the intention of Mr Falle to build
a basement wall up to the demarcation line and the northern gable of his maisonnette
against that basement wall and the imposition of servitudes relevant
thereto. The Court made a site
visit to see what had been built and took into account the report of Mr
Falle’s engineers as to how the existing northern gable had actually been
constructed (over which there was no issue).
28.
Whilst the Court has affidavit evidence from Mr Falle and from Mr Russell,
and they were briefly cross-examined, we have not taken that evidence into
account in construing the servitudes and in particular the evidence of Mr Falle
as to what he and Mr Baker may have intended as parties to the contracts.
29.
It was common ground that the principle of Destination de père
de famille had no application here. Whilst the two plots were originally in
one ownership, they had nothing built on them and neither drew from the other a
right which would have been a servitude if separated. The servitudes with which we are
concerned were expressly created on separation to deal with the buildings that
were intended to be constructed on each.
30.
The Human Rights (Jersey) Law 2000 is applicable in the context
of disputes between landowners in the private sector (see Fogarty v St
Martin’s Cottage Limited [2016] (2) JLR 246 at paragraph 134 to 141),
the Court being a public authority required to act in a manner which is not
incompatible with (in this case) Article 8 of the European Convention on
Human Rights. Advocate Hoy did
not contend that the servitudes created here, and the interpretation argued for
by Advocate Emmanuel, did not satisfy the requirement for legality and the
pursuit of a legitimate objective in a manner which is proportionate i.e. striking
a fair balance between the Beach House and La
Côte.
The first issue
31.
Was Mr Falle required under Clause 13 to build the northern gable in
bricks or stone? This is a narrow
point of construction. Servitudes
are, of course, passive as regards the person whose property is subject to it;
he is never required to take positive action (see The
Jersey Law of Property, Matthews and Nicolle, 5th Edition, 2009 at paragraph
1.38). Clause 13 does not purport to
oblige Mr Falle to build the northern gable wall in this position. He could build it sufficiently within La Côte so that it can be maintained from
La Côte, but if he does build it against the
basement wall, Mr and Mrs Russell contend that he must do so in bricks or stone
before any access rights over the Beach House to maintain it can arise.
32.
Advocate Hoy focused on the words “sera construit” or
“will be built”, words which are mandatory. If Mr Falle built the northern gable in
that position, it had to be in brick or stone. However, that is to ignore the
preliminary words “étant entendu” or “it being
understood”, that the northern gable will be built in brick or stone.
33.
This is a sentence tacked on to the end of a clause which gives the
owner of the Beach House a right to join to the northern gable of La Côte
if constructed in that position, and Advocate Hoy argued that the requirement
for it to be built in brick or stone was concerned with ensuring that the
northern gable was of solid and safe construction, against which to exercise
the droit de jointure so as to provide mutual support. He referred in this respect to the first
instance judgment in Fogarty v St Martin’s
Cottage Limited [2015] (1) JLR 356 at paragraph 46, where Sir William
Bailhache, then Bailiff, said this at paragraph 46:
“46. …The customary law rule is that all walls
have an offset, or relief, of 1½ ft.
Unless there is some provision which is inconsistent with that
principle, the offset or relief must be allowed. A
right to join would be so inconsistent, but the fact that there is a boundary
stone without offset belonging to the neighbour is not. Indeed, the ownership of the boundary
stone without offset and the creation of a boundary line would not exonerate
the neighbour of the obligation to allow for a relief or offset if he were
constructing a wall within his property.
Furthermore, the very notion that there is to be implied a right to join
a wall to a boundary stone has an incongruous feel to it. This right is created in order that
neighbouring owners can have mutual support for their walls or gables and
clearly a wall and a boundary stone do not provide mutual
support….”.
34. However, what the Beach House is granted by
Clause 13 is a “droit
de jointure contre ledit pignon” namely a right to build up against (to join to) the northern gable not
build into or onto it (see Colesberg(1972) Limited v Alton Hotel Limited
[2003] JLR 47 at paragraphs 29 and 30). If the draftsman was
concerned with the method of construction of the northern gable so as to ensure
its solidity for the purpose of the droit de jointure, he would have
said so. Bricks can come in many
different sizes. A wall built with
a thickness of say one brick would not necessarily guarantee solidity. Although the Court has no expertise in
building matters, it doubts whether a cavity tied concrete block wall is any
less solid than a wall built in bricks. We use the word “draftsman”
as the person whose task it is to represent the intention of the parties in
written form (see Property Law in Jersey at page 189).
35. Take by way of contrast Clause 24 of the
contract which enables Mr Baker to erect “un bon mur en briques
ou en pierre” (our emphasis) on the western boundary of the Beach
House—this is concerned with the construction of the wall as well as the
materials, the use of the word “bon” indicating in this
context a wall that is well built, sound or fit for purpose. There is nothing in Clause 13 to indicate
that it was concerned with the quality of construction, soundness or fitness
for purpose of the northern gable. It
is also counter intuitive to suggest the draftsman was concerned that Mr Falle
would build a gable (a gable being integral to the structure of a building) to
his maisonnette that was not solid and safe.
36. In the Court’s view, the key to
interpreting this provision lies in the qualifying words “le tout visible et non ravalé”. It is concerned with
the bricks or stone being seen; hence no rendering which would hide the bricks
or stone. It has nothing to do with
the structure. It is concerned with
the aesthetics of the northern gable—what it would look like from the
Beach House. Aesthetics are
concerned with the superficial appearance of an object, not its underlying
structure, hence the reference to the bricks or stone being visible and not
rendered.
37. It cannot have been intended that the internal
part of the structure of the northern gable should also have been built in
bricks or stone. On the basis that
he is in breach of Clause 13, Mr Falle proposes taking down the outer leaf of
the northern gable (which is thought not to be load bearing) and replacing it
with bricks tied to the inner leaf of larger concrete blocks (which are thought
to be load bearing). Once those
works are completed the northern gable as a structure will comprise an inner
leaf of concrete blocks tied via a cavity to an outer (and therefore visible)
leaf of bricks. If it had
originally been built in this way, it could not have been argued that it did
not comply with Clause 13. The last
part of Clause 13 is only concerned, therefore, with that part of the northern
gable that is visible and we construe it as recording an intention on the part
of Mr Falle that the visible element of the gable wall he intended building
would be in bricks or stone.
38. Following the hearing it was our initial view
that we must pay heed to the ordinary meaning of the words actually used in
Clause 13 and ordinarily an understanding is not legally enforceable. If it was to be mandatory that, if
built, the visible element of the northern gable had to be built in bricks or
stone, then the Clause could have said just that. The Clause could have simply provided that “ledit pignon du
Nord ….. sera construit en bricques ou en pierres ou en bricques et
pierres, le tout visible et non ravalé.” It did not, and
therefore giving the words used their ordinary meaning, we took the view that
on its proper construction there was no enforceable obligation upon Mr Falle to
build the visible element of northern gable in bricks or stone. It was an understanding that he would do
so.
39. We noted that the phrase “étant
entendu” is used elsewhere within the contract, for example in
Clauses 3(b) and 24, where a right is given to build a wall against a
demarcation line which it is “understood” the foundations of which
may extend under land belonging to the neighbour. Clearly a wall could not be built against
a demarcation line without foundations which would have to encroach. The right is to build the wall in that
position and it was understood that such a right would involve a
foundation that would encroach. Clause
20 provides that Mr Falle and Mr Baker will not park on the small strip of land
they jointly own, which was to be used as a private roadway to come and go to
their properties. It was understood
that they would not park on it as that would prevent its use for that purpose. The phrase is used in these contexts as
an understanding in relation to rights already granted as opposed to creating a
contractual obligation.
40. We accept, however, following receipt of
further detailed and helpful written submissions on the point, that the phrase
“étant entendu” can give rise to an enforceable
obligation, depending upon the context in which it is used. Advocate Hoy referred us to the case of Higginson
v Weld [1859] Gray 14 165 where it was held that the phrase “it is
understood” in the context of a shipping contract connotes the same
as “it is agreed”. Hoare J said this at page 170:
““It is
understood”, in the ordinary use of that phrase, when it is adopted in a
written contract, has the same force with “it is agreed””.
41. That is consistent with the finding in Campbell
v I.R.C. [1970] A.C. 77, although Stroud’s Judicial Dictionary
10th Edition and 1st Supplement cites other cases where
the use of “understand’ was not enough to create any contractual
relationship. It depends upon the
context in which the phrase is used.
42. As Advocate Hoy points out the phrase is used
here in a formal conveyance under the section which commences: “Etant
de plus convenu et accorde...”. If the phase was intended to be no
more than a hope or aspiration, then he says that would need to have been made
clear. Furthermore, he asks what
was the point of including this part of Clause 13, if it was not agreed that Mr
Falle would indeed build the northern gable in bricks or stone? If he could build in any material, why
include it at all? Its inclusion
would suggest that it was intended to have force. We note that three firms of lawyers
(those acting for the parties and the prospective purchaser) have interpreted
this part of Clause 13 as giving rise to an enforceable obligation and indeed
that was the basis upon which Mr Falle brought his Representation.
43. The point is arguable both ways and Mr Falle
might pray in aid the principle that any ambiguity should be interpreted in
favour of the freedom of La Côte, on the basis that it is the servient
tenement. Initially the Court took
the view that in relation to Clause 13, taken on its own, La Côte was the
servient tenement as it has to suffer an encroachment over six inches or so of
its property should the droit de jointure be exercised, but that only
arose because under the relevant provisions as a whole, Mr Falle was
effectively afforded the ability to build and maintain a gable in a position
much closer to the Beach house than would ordinarily be the case. In this context it seems unrealistic to
talk in terms of the freedom of La
Côte as the burden overall is upon the Beach House. We are not
persuaded that, looking at the context in which the droit de jointure,
was granted it is right to regard La Côte as the servient tenement.
44. Our conclusion, on balance, is that the understanding at the end of Clause 13
was intended to have the same force as an agreement and that Mr Falle was
obliged to build the visible element of the northern gable in bricks or stone.
Second issue
45. Does Mr Falle have a right under Clause 14 to
use the Access Area for the purpose of replacing the outer leaf of the existing
northern gable with bricks or stone or generally of maintaining, upkeeping,
repairing or replacing the northern gable as currently constructed? It is clear that under Clause 14 La Côte is the dominant tenement given a right
of access over the Beach House which as the servient tenement it has to suffer.
46. Advocate Hoy’s submissions were in
summary:
(i)
The right
of access in Clause 14 was created for the purpose of Mr Falle maintaining the
northern gable constructed in accordance with Clause 13 i.e. in bricks or
stone. Clause 14 refers to “ledit
pignon” namely that referred to in Clause 13.
(ii) It was not so constructed, and therefore Mr
Falle has no right of access over the Beach House to maintain the northern
gable that he has in fact constructed.
The right of access under Clause 14 does not apply to a gable
constructed of rendered concrete blockwork. There was no going back once the gable
had been constructed incorrectly and the Court cannot now impose an implied
right of access.
(iii) It is a pre-condition to the exercise of the
access right over the Beach House that the northern gable be built in brick or
stone. Clause 14 has no application
to a gable differently constructed, and therefore cannot be used now to replace
the northern gable with what should have been built there. The right to replace the gable can only
apply to a gable properly constructed in the first place.
(iv) As a consequence, Mr Falle’s only option
is to remove the northern gable in its entirety (to be undertaken from the La
Côte side) and rebuild the northern gable sufficiently within La
Côte to enable it to be thereafter maintained from within La Côte
without any access to the Beach House.
It goes without saying that this would not only be a very costly
exercise but have a very detrimental impact upon the existing house built on La
Côte.
(v) Furthermore, a gable built in bricks or stone
would require little maintenance, compared to a cement rendered gable which
would need to be repainted from time to time at least. By changing the nature of the northern
gable, the Beach House would have to suffer an increase in the access being
exercised upon its land to carry out the necessary maintenance. He referred to Le Fevre v Matthew
[1974] JJ 49 at pages 61 and 62 on aggravation and to this passage from the Traité
du Droit Coutumier de l’Ile de Jersey by Le Gros, 1943 at page 21:
“La servitude ne peut
être aggravé, mais
elle peut être rendu
plus commode … Elle ne peut être exercée
que dans la limite des besoins
pour lesquels elle a été
constituée.”
Advocate Hoy emphasised the latter passage,
namely that a servitude can only be exercised within the limits of the need for
which it was created.
47. Advocate Hoy added that a further consequence
to Mr and Mrs Russell of Mr Falle’s failure to build the northern gable
in bricks or stone was that the Beach House has now lost its droit de
jointure because, if his interpretation was correct, that can only be
exercised against a gable built of bricks or stone. This droit de jointure seems to us
to be potentially of some value to the owners of the Beach House in that it
enables them to build over that part of their property that has been kept free
to enable maintenance of their own southern gable.
48. We have found that Mr Falle was under an enforceable
obligation to build the visible element of the northern gable in bricks or
stone, and we further find that the right of access under Clause 14 is
available to him in order to replace the outer leaf of the existing northern
gable with one built of bricks or stone to bring the northern gable into
conformity with his obligation under Clause 13.
49. The obligation does not relate, as we have
found, to the entire structure of the northern gable being in bricks or stone,
but only to the outer visible element of it. A gable has now been built against the
basement wall of La Côte and in our view, it cannot have been the
intention that both the droit de jointure enjoyed by the Beach House and
the right of access enjoyed by La Côte were conditional upon the visible
element of it being compliant with this obligation. Such an outcome would be wholly
disproportionate. If that had, for
some reason, been the intention of the draftsman, then both Clauses 13 and 14
would have to have contained express words to that effect.
50. Say, for example, that Mr Falle’s builder
had, in error, built the northern gable as it is or rendered over the bricks or
stone or built partly in brick and partly in rendered concrete (as is the
southern gable of the Beach House), then if Advocate Hoy’s arguments are
correct, it would mean that such errors could not be rectified using the right
of access under Clause 14 to bring the northern gable into conformity with
Clause 13. The right of access and
the ability therefore to maintain, upkeep, repair and replace the northern
gable in that position would be lost for ever. The northern gable would have to be
demolished with part of the house of which it forms part and rebuilt within La
Côte.
51. The substantive nature of the northern gable
will not change, only the visible element. It is not an aggravation of the servitude
for the northern gable to be brought into conformity with Clause 13 and the
servitude would still only be exercised within the limits of the need for which
it was created.
52. As a matter of construction, therefore, of
Clauses 13 and 14 we find that the droit de jointure and the right of
access to maintain would not have been lost by virtue of the outer visible
element of the northern gable being non-compliant with this obligation.
53. Accordingly, we find that Mr Falle does have
the right under Clause 14 to use the Access Area for the purpose of replacing
the outer leaf of the existing northern gable with bricks or stone. That right can only be exercised “lorsqu’il deviendra necessaire”, and it is necessary for the
northern gable to be brought into conformity with Clause 13. The right must also be exercised in
accordance with the other provisions of Clause 14 by which Mr Falle is charged “d’achever lesdits
travaux aussi vite que
possible, de causer le moindre d’inconvénient
possible audit Donataire et de remettre
les lieux affectés en bon état de reparation une fois lesdits
travaux achevés”.
Third issue
54. Does Mr Falle have an implied right of access
under Clause 14 onto and over the Beach House in order to get to and from the
Access Area?
55. Advocate Hoy submits that if his interpretation
of Clauses 13 and 14 is incorrect, Clause 14 only allows Mr Falle to use the
Access Area for any works to the northern gable. As set out above, the Access Area
comprises a strip of Beach House land 3 feet from the north face of the
northern gable of La Côte and co-extensive with it. There is no right, he argues, for Mr
Falle or his workmen to go onto and over any other part of the Beach House in
order to get to and from the Access Area.
56. It is relevant that the contracts provide for
the building of walls entirely separating the two plots and having visited the
site, the Court is satisfied that there is no reasonable and safe way by which
workmen for Mr Falle can get to the Access Area without going onto and over the
Beach House, other than being lowered somehow from the roof of La Côte,
or by climbing on to the party wall at the eastern end of the basement wall,
and jumping down at an angle.
57. The Court therefore finds as a matter of fact
that from the way the two plots have been separated, as provided for in the
contracts, there is no reasonable and safe way workmen for Mr Falle can get to
and from the Access Area without going onto and over the Beach House.
58. Advocate Emmanuel submits
and we agree that implicit in a right of a servitude is
a right to do that which is necessary for the enjoyment and use of the
servitude. From this perspective
the ancillary right is not to be considered a new servitude, but simply an
accessory to an existing servitude (and therefore may not offend the maxim of nulle
servitude sans titre).
59. As stated by Rebecca MacLeod in Property Law
in Jersey at page 163, servitudes were received into Jersey law from Roman
law and were found neither in the Tres-Ancien Coutumier nor in the Grand
Coutumier, only in the Reformed Custom. The author suggest that servitudes were
received into Norman law after the mid-13th century and before 1583.
60. In The Jersey Law of Property Matthew
and Nicolle state at paragraph 1.46:
“Implicit in a right of
servitude is a right to do that which is necessary for the enjoyment of the
servitude (Dalloz, loc.cit. para 465). The example usually given is that of a
right to draw water from a fountain on a neighbouring property, which
necessarily carries with it a right of way across that property to the fountain.”
We note that this passage
was quoted by the Royal Court in Snell v Beadle 1999/68 Jersey
Unreported, 4th February 1998 at page 7.
61. The part of the Nouveau Répertoire
de Droit, 2nd Edition, by Dalloz referred to (in the section
on servitudes created by title, prescription or by è de
père de famille) provides:
“465. La
concession d’une servitude entraîne celle de tous les accessoires
nécessaire à son exercice.
Ainsi, celui qui doit la servitude de puisage
doit fournir le passage nécessaire
pour accéder au puits
(c.civ.art. 696) …”
“465. The concession of a servitude
entails all the necessary accessories for its exercise. Thus the person who owes the servitude
to draw water must provide the necessary passage to access the well (c.div.art
696)..”.
62. This follows Article 696 of the Code Civil
(1804) which provides:
“696. Quand on établit une
servitude, on est censé accorder tout ce qui
est necessaire pour en user. Ainsi la servitude de puisser de l’eau à la fontaine d’autrui emporte necessaire
le droit de passage”.
“Where a person establishes
a servitude, he is deemed to grant all that is necessary to use it. For instance, a servitude to draw water
from another’s fountain necessarily carries a right of way.”
63. Article 696 was relied on by the Court of
Appeal in Fogarty v St Martin’s Cottage
Limited [2016] (2) JLR 246 where it held that: “Accessory
to that right was the right to enter the Claimant’s land to carry out
necessary repairs to the structures.” The conferral of a greater right
(e.g. the right to maintain one’s own property) may encompass that
implied grant of a lesser right.
64. Article 697 of the Code Civil (1804) provides:
“Celui auquel est due une
servitude a droit de faire tous les ouvrages nécessaires pour en user et
la conserver”
“A person
to whom a servitude is due has the right to do all works necessary to use and
maintain it.”
65. Pothier, in his work Coutumes des
duché, bailliage et prévôté d’Orléans
et resort d’iceux, 1780, whilst discussing the prescription period
for the loss of servitudes, refers to an accessory right of way across a
neighbour’s land to use a servitude of drawing water:
“Mais s’il
n’avoit fait que ce qui n’est l’accessoire de ce que son droit de servitude lui donne droit de faire, il ne seroit pas censé avoir usé de son
droit. Par exemple,
si celui qui a le droit de puiser de l’eau a mon puits, a passe souvent sur mon heritage, et est venu jusqu’a mon puits, mais
sans avoir puisé de l’eau depuis trente ans, il est censé n’avoir pas usé de son droit, et il a perdu son droit de puiser de l’eau, sans même conserver celui de
passer sur mon heritage, qui n’en
étoit que l’acessoire.”
“But if he
had only done what is only an accessory to what his right of servitude gives
him the right to do, he would not be deemed to have used his right. For example, if the one who has the
right to draw water from my well has often passed over my land and has come to
my well but without having drawn water from it for thirty years, he is deemed
not to have used his right and he lost his right to draw water without even
keeping the right to pass on my land, which was only an accessory.”
66. Domat, in his work Loix Civiles dans leur Ordre
Naturel, Tome 1, Titre X11, Section l, on the subject of “Accessoires des
servitudes” wrote:
“Le droit de servitude comprend les accessoires sans lesquels
on ne pourroit en user. Ainsi, le
servitude de prendre de l’eau d’un puits ou d’une
force emporte la servitude du passage pour y aller: ainsi la servitude
d’un passage emporte la liberté
d’y faire, ou reparer l’ouvrage
necessaire pour s’en server: et si le travail ne peut se faire dans l’endroit
ou la servitude est fixée,
ou pourra travailler dans les environs, selon
que la necessité peut y obliger; mais en reparent on ne peut rien innover a l’ancien état.”
“The right of a servitude includes
the accessories without which one could not use it. Thus, the servitude to take water from a
well or a spring carries the servitude of passage to go there: thus the
servitude of a right of way carries the freedom there to carry out or repair
the workings necessary to use it: and if the work cannot be done in the place
where the servitude is fixed, one can work in the vicinity, as the necessity
may require, but when making repairs one cannot change the previous condition
of the area.”
67. The Law of Immoveable Property, by Rebecca F Macleod, 2020, 12th Edition prepared for
the Jersey Institute of Law (early editions of which were written by
Stéphanie Nicolle), refers to the French Civil Code articles stated
above and explains:
“10.86 Implicit
in a right of servitude is a right to do that which is necessary for the
enjoyment of the servitude. So, in the words of the Code Civil: celui auquel est due une servitude a droit de faire tous
les ouvrages necessaries pour en user et la conserver.
10.87 The
conferral of a greater right may encompass the implied grant of a lesser
right. So a right to take water
from the servient tenement assumes a right of passage
onto the land to access the water…”
68. Rebecca MacLeod in Property Law in Jersey
states, with a footnote referencing Matthew and Nicolle, that:
“8. Implied Content
A servitude may also bring with it implied content. For example, a servitude of drawing
water from a well has an ancillary to it a right of way in order that the well
might be reached, even when this is not expressly stated. Implied content may
also consist of a right to install a structure – such as pipes or a
channel for a servitude of aqueduct – and a right to maintain that
structure, which would allow access on to the servient tenement for that purpose.”
69. Rebecca MacLeod thereafter refers in paragraph
8.1 to the writings of Le Gros who recognised implied content in the Jersey law
of servitudes and continues:
“The extent of a servitude is
determined and fixed at its creation, including implied content…At its
most basic, implied content enables the servitude to be exercised. In determining implied content, French
law, Quebec Law, and Louisiana law indicate that necessity is a key concept. All three state that rights are
necessary for the use of a servitude…There is a test of ‘reasonable
necessity’ in Scots law with reference to Moncrieff v Jamieson.”
70. There is clear authority, therefore, for the
proposition that implicit in a right of servitude is a right to do that which
is necessary for the enjoyment and use of the servitude. It might be said that this is a
statement of the obvious. As a
matter of common sense if a property owner is granted a servitude, he or she
must be able to do that which is necessary to enjoy and use that
servitude. The example given by the
commentators is that of a right to draw water from a fountain on a neighbouring
property, which necessarily carries with it a right of access across that
property to the fountain. Another
example would be a right given to lay and thereafter maintain repair and renew
drains across a neighbour’s land.
Implicit in such a servitude is a right of access on to the
neighbour’s property, firstly to lay the drains and thereafter to
maintain repair and renew them.
71. If
the owner of La Côte cannot get to the Access Area situated on the Beach
House from La Côte, then it is implicit that he has a right of access
onto and over the Beach House in order to do so. It is necessary to imply such an
ancillary right. Without it the
servitude created by Clause 14 cannot be used and enjoyed.
72. Advocate Emmanuel accepts that such implied
right of access must be exercised civiliter so as to cause the least
inconvenience to Mr and Mrs Russell - see Colesberg
Hotel Limited v Alton Hotel Limited at paragraph 25.
73. Accordingly, Mr Falle does have an implied
right of access under Clause 14 onto and over the Beach House in order to get
to and from the Access Area.
Fourth Issue
74. Does Mr Falle have an implied right under
Clause 14 to erect scaffolding on the Access Area?
75. Advocate Hoy submitted that the right of access
granted under Clause 14 does not include the right to erect scaffolding on the
Access Area. It grants Mr Falle a
right of access to the Access Area “avec ou
sans ouvriers et matériaux”
but there is no reference to scaffolding.
This is in contrast to Clause 13 where in exercising the droit de
jointure the owner of the Beach House is given the right of access over the
6 inches of the basement wall belonging to La Côte “….avec
ou sans ouvriers, matériaux, echelles et échafaudages
….”.
76. At the time the contracts were passed, no
buildings had been erected on either plot, but they record the intention of Mr
Falle and Mr Baker to build a maisonnette on each of their plots There was a general restriction on both
plots limiting the height of any maisonnette to a maximum of 33 feet
above the normal surface of the ground amongst other restrictions. Consistent
with those restrictions, the property erected at La Côte (as with the
Beach House) comprises a ground floor and high-pitched roof which contains
accommodation. As a consequence,
the northern gable from the ground to the apex of the roof is a high structure
which self-evidently cannot be maintained from the ground.
77. If Advocate Hoy’s argument is correct,
then it would apply to both scaffolding (échafaudages)
and ladders (echelles), neither of which are mentioned in Clause 14 and
neither of which would be permitted on the Access Area.
78. Advocate Emmanuel drew our attention to
Regulation 53 of the Construction (Safety Provisions) (Jersey) Regulations
1970, which stipulate that:
“without prejudice to the other provisions of these
Regulations, where work cannot safely be done on or from the ground or from
part of a building or other permanent structure, there shall be provided,
placed, kept in position for use and properly maintained either scaffolds or,
where appropriate, ladders or other means of support, all of which shall be
sufficient and suitable for purpose.”
79. Mr Falle’s engineer’s report states
“We have reviewed the options of undertaking the works without
accessing Beach House but without this a scaffold cannot be erected. Without the use of a scaffold, we do not
see how these works could be undertaken in a safe manner and would result in a
major breach of Health and Safety legislation.”
80. This regulation was in force when the contract
was passed in 1985. The draftsman
would have been aware, therefore, that in carrying out works of maintenance,
upkeep, repair and replacement of the northern gable Mr Falle intended to
build, a safe means of support for the workmen carrying out the work, using
scaffolding or, where appropriate, ladders would have to be provided. It is inconceivable that the draftsman
would have intended to exclude these universal methods by which work can be
safely undertaken. If he had
expressly excluded them, the servitude would have been rendered unusable.
81. Whilst the word “matériaux”
might in one sense be thought to refer to the actual materials used for the
work of maintenance, upkeep, repair and replacement, let’s say the
bricks, sand and cement, it must by necessary implication extend to the tools
used by the workmen in carrying out that work (although there is no reference
to “outils”) and, in our view,
anything else that is necessary to enable them to undertake the work over the
whole of the northern gable safely.
82. We cannot explain why the draftsman thought it
necessary to expressly refer to scaffolding and ladders in Clause 13 but not in
14. It may be that he considered
exercising a right of access high up over the six inches of property belonging
to La Côte impossible without scaffolding and ladders and therefore made
express reference to them, but in our view it is implicit in the grant of
access to Mr Falle and his workmen to the Access Area for the purpose of
maintaining, upkeeping, repairing or replacing the northern gable, that such
work be carried out safely and in accordance with the regulations in force from
time to time and that includes the use of scaffolding and ladders.
83. The method statement produced by Mr
Falle’s engineers for the work of removal of the outer leaf of concrete
blocks and replacement with bricks shows the scaffolding being built within the
3 feet limit of the northern gable but extending three feet or so at each gable
end, allowing access to the scaffolding from La Côte at both ends. Save for the erection of the
scaffolding, this enables all of the materials to be kept on La Côte and
loaded on to the scaffold from La Côte and for the work to be undertaken
without any further access onto and over the Beach House.
84. It might be thought that Mr and Mrs Russell
allowing the scaffolding to extend beyond the northern gable in this minimal
way for the work of maintenance, upkeep, repair or replacement of the northern
gable to be carried out, will cause the least inconvenience to them, following
the principle of civiliter.
If they limit the scaffolding strictly to the extent of the gable wall,
then the workmen would have to gain access through the front or rear entrances
to the Beach House every day for the duration of the works, which would be far
more invasive.
85. Accordingly, we find that Mr Falle does have an
implied right under Clause 14 to erect scaffolding (and to place ladders) on
the Access Area.
Conclusion
86. In conclusion, and as these obligations and
rights bind both the Beach House and La Côte, we declare that the owner
of La Côte:
(i)
was
obliged under Clause 13 to build the visible element of the northern gable in
bricks or stone or bricks and stone, visible and not rendered.
(ii) does have the right under Clause 14 to use the
Access Area for the purpose of replacing the outer leaf of the existing
northern gable wall with bricks or stone or bricks and stone, visible and not
rendered and that it is necessary for him to do so.
(iii) does have an implied right of access under
Clause 14 onto and over the Beach House in order to get to and from the Access
Area to be exercised civiliter.
(iv) does have an implied right under Clause 14 to
erect scaffolding or to use ladders on the Access Area.
87. In exercising his right of access under Clause
14, Mr Falle must, of course, comply with the obligations imposed upon him
under that Clause.
Authorities
La
Petite Croatie Limited v Lido and Gale [2009] JCA 221.
Parish
of St Helier v Minister for Infrastructure
[2017] JCA 027.
The
Colesberg Hotel (1972) Limited v Alton Hotel Limited [2003] JCA 083.
Haas
(née Daniel) v Duquemin and Duquemin (née O’Toole) [2002] JLR 27.
Pothier’s
Rules of Construction of Contracts
Property Law in
Jersey
Human Rights (Jersey) Law 2000.
Fogarty
v St Martin’s Cottage Limited [2016]
(2) JLR 246.
European Convention on Human Rights
The Jersey Law of Property, Matthews
and Nicolle, 5th Edition.
Fogarty
v St Martin’s Cottage Limited [2015]
(1) JLR 356.
Colesberg(1972) Limited v Alton Hotel Limited [2003] JLR 47.
Higginson v Weld [1859] Gray 14 165.
Campbell v
I.R.C. [1970] A.C. 77.
Stroud’s Judicial Dictionary.
Le
Fevre v Matthew
[1974] JJ 49.
Traité du Droit Coutumier
de l’Ile de Jersey, Le Gros, 1943.
Snell
v Beadle 1999/68.
Nouveau Répertoire
de Droit, 2nd Edition, by Dalloz.
Fogarty
v St Martin’s Cottage Limited [2016]
(2) JLR 246.
Pothier Coutumes des duché,
bailliage et prévôté d’Orléans et resort
d’iceux, 1780.
Domat Loix
Civiles dans leur Ordre Naturel, Tome 1, Titre
X11.
The Law of Immoveable Property,
Rebecca F Macleod, 2020, 12th Edition.
Construction (Safety Provisions)
(Jersey) Regulations 1970