Letter to The Editor
1 I have been given sight of Advocate
Falle’s letter casting doubt over the validity of the 2015 contract
between the Crown and the Public of the Island, and take this opportunity of
responding to it. I was, until recently, Head of Conveyancing in the Law
Officers’ Department. This is not an official response, but represents my
personal views as an experienced conveyancer.
2 I would begin by reiterating the words
contained in the 2015 contract which transferred “all such title rights
and interests of the Crown in right of the Bailiwick of Jersey in the
hereditaments set out hereunder”.
3 It follows from this clear wording that
the Crown only transferred that which it had the right to transfer. If any of
the Seigneurs of the maritime fiefs can produce a document which proves his or
her proprietary title to the foreshore between the low and high water marks,
then these areas were not transferred in the 2015 contract.
4 The disparaging remarks contained in the
letter concerning the standard of conveyancing are unjustified. The
conveyancers drafted the contract in accordance with instructions, and the
content was based on the advice and guidance set out in the records of
successive Crown Officers. The form of the contract reflected the unique and
unusual nature of the property transferred. It would have been impracticable to
establish boundaries and jointures all around the Island.
5 As to the validity of the contract, I
would comment as follows—
(1) If two
contiguous properties are owned by the same proprietor they form one single corpus fundi. It then follows that, as
the seabed and the foreshore are contiguous and were both owned by the Crown,
they formed only one corpus fundi. This
would remain true even if some of those strips of foreshore co-extensive with
the maritime fiefs belonged to a third party.
21 of the Loi (1880) sur la
propriété foncière deals with contracts of two or more
corpora fundi and their hypothecation
and is irrelevant to the 2015 contract.
words “sous peine de nullité”
were deleted from the final sentence of art 21 by the Loi (2000) (Amendment No 4) sur la propriété
4 The assertions that the 2015 contract is
in breach of art 21 are therefore unfounded.
5 The “Extentes” are inventories of the assets of value, mostly
comprising rentes, which produced a
financial return for the Crown. It does not necessarily follow that the Crown
has no title if a particular parcel of land is not listed.
6 The letter goes on to quote selective
extracts from archaic laws to support the writer’s arguments. The extract
from the Loi (1882) sur les parcs
à huitres, when read in the context of the whole law, deals with
concessions to establish oyster parks on the foreshore and refers to the owners
of and the extent of those concessions. It has nothing to do with the
proprietary ownership of the foreshore.
7 The reference in the letter to the
unambiguous statutory recognition of legal boundaries between the Crown and
private fiefs extending over the foreshore in the Loi (1894) sur la coupe et la pêche des vraics is mistaken. The
wording quoted, which was deleted in 1926, gives reference points on the
foreshore which relate to the boundaries between the fiefs on land. It provides
no evidence as to the proprietary ownership of the foreshore.
8 It is interesting to note that the form of
words taken from art 18 of the Loi (1882)
sur les parcs à huitres quoted in the letter, and which refer to
rights over the foreshore and not proprietary rights in the foreshore, are
similar to those used in two contract leases: first, the lease dated 24 March
1894 by the Crown to the Jersey Swimming Club of a section of the foreshore at
Havre des Pas for the construction of a swimming pool and, secondly, the lease
dated 9 July 1921 by the Crown to the Croft Granite, Brick and Concrete Company
Ltd of the foreshore between the high and low water marks at Ronez. The
reference to rights, as in the 1882 law, could not have meant proprietary
rights as these clearly belonged to the Crown as lessor. It is also worth
noting that until the Seignorial Rights (Abolition) (Jersey) Law 1966, the
property described in a contract would always be referenced as being situate in
a certain fief. In neither of the above mentioned contract leases is the fief
mentioned, clearly indicating that the foreshore thereby leased did not form
part of a fief.
9 It is unfortunate that this contentious
matter, which has been the subject of polarising views for many years, was not
aired more fully and resolved by the Royal Court in the case brought by Les Pas
Holdings Ltd against the Crown and the States. The parties chose to settle. The
situation is not helped by the highly selective use of extracts from archaic
laws and the conflation of rights over the foreshore with proprietary rights in
the foreshore. The letters section of your publication is not in my respectful
view the place to try to resolve this matter.
Helier JE2 3AH