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Legal principle of implied rights saves homeowner from forced demolition

In a tranquil, rural part of the Island a boundary dispute has smouldered for over 40 years. In the past few years the dispute has ignited into court proceedings which have gone as far as the Court of Appeal. The Court of Appeal’s recent decision has hopefully extinguished the dispute once and for all.

What happened: an extension and a boundary line

The dispute involved two houses on a hill next to a narrow winding lane.  The houses are separated by a bank which descends steeply from right to left.  When the land was first divided in the 1950s there were no houses, just terraced fields cut into the hillside. As a field, it wasn’t so important to accurately record where one piece of land ended and the other began because the bank could not be cultivated. In the contracts, the status of the bank was left blank. This proved to be very unfortunate.

Over time, houses were built on each of the plots. In the 1970s an extension was built to one of the houses (Property A), which the owners of the other house (Property B) did not take kindly to. They complained about the nuisance that the building work caused. They did not complain however, that the extension had been built too close to the boundary, although within a few years of completion of the extension they planted fast growing fir trees on the bank. The inevitable happened and they grew - and grew! The trees cast constant shade over the windows to the bedroom in property A and made some of the windows difficult to open. When Property A was sold to the current owners the previous owner focused on agreeing a boundary line. She hoped that the certainty of knowing where her land ended and the neighbour’s began would help sell the house.

Little did she know that it would cause such a headache for the people who bought from her

With the agreement of Property B’s neighbour, boundary stones were dug in – one at each end of the bank – and the boundary line was drawn between the two. That was all well and good save that the way the extension was built meant that it projected in a slight curve on the bank and the boundary line dissected part of it. The boundary line was agreed in the contract but no other rights were. The owner of Property A acknowledged that “encroachments would be dealt with later”.

The new owners of Property A were then  presented with a demand by their neighbours that part of the extension which had been there for over 30 years be demolished because it crossed the boundary line. In addition, the neighbour required bedroom windows to be sealed and fitted with opaque glass. This clearly meant that without an agreement between the house owners, litigation was unavoidable.

The previous law

A case from the 1970s was the only one decided on this point in Jersey. That case had taken a strict view that breaches of rights in relation to property could only be put right by their removal, which suggested that part of the extension of Property A would have to be removed as there were no rights for it to remain. The extension would have to be rebuilt at huge expense and it was possible that the bedrooms facing the boundary could no longer be used as bedrooms.

The Royal Court ruling

The Royal Court rejected the argument that part of the extension ought to be demolished and windows be sealed. It decided that although the new agreed boundary line would ordinarily require demolition of part of the building, damages should be paid instead. An amount for damages (compensation) was  agreed.

The Royal Court resolved that although the offending part of the building could remain, there were no access rights through the neighbour’s land (Property B) to maintain it. The part of the building which crossed the boundary line would therefore eventually tumble into disrepair and fall down.

The owners of Property B appealed the decision of the Royal Court and demanded again that the offending part of the extension be demolished. A cross appeal was lodged by the owners of Property A, who argued that this step would be unfair.

The Court of Appeal applies legal principle

The Court of Appeal looked at the case afresh. They considered an argument based on the legal principle called destination de père de famille. This is a doctrine which provides implied rights to land owners in situations where property was once in sole ownership and is then divided. If no rights were included in the contract of sale / transfer, then rights may be implied so that land may be enjoyed as it was before division.

The Court of Appeal decided:

Neither neighbour knew where the dividing line was between the two properties.  Had they known they would not have passed a contract to agree where the line was.

Unless it was specifically agreed in the contract of division that implied ancillary rights would not apply, then they would always do so.

The owner of Property A could not have conceivably agreed to a boundary contract which would involve the part demolition of her house and the sealing of bedroom windows.

The Court of Appeal decided that rights were implied between the parties on the passing of the boundary contract that Property B would have to permit access in the future to maintain the extension.