Falle v Russell and Russell 29-Mar-2022

Property - interpretation of servitudes

[2022]JRC077

Royal Court

(Samedi)

29 March 2022

Before     :

J. A. Clyde-Smith O.B.E. and Jurats Crill and Cornish

 

Between

Jean Pierre Vernon Falle

Representor

And

Michael Charles Russell

First Respondent

And

Karen Anne Russell

Second Respondent

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


Page Last Updated: 03 Oct 2022