Subject-Matter Index

Boundary

determination of boundary

Jurats considered intentions of parties to original conveyance as to position of boundary line, subject to any later title acquired through adverse possession—Court of Appeal reluctant to interfere with Jurats’ findings made after vue de justice: Smith v. Slawther (C.A.), 1997–99 GLR 168

Clameur de Haro. See INJUNCTIONS (Clameur de Haro)

Co-ownership

equality. See Co-ownership—shares of co-owners

licitation. See Co-ownership—termination

severance of joint interest. See Co-ownership—termination

shares of co-owners

if one cohabitee provides all or most of funds to purchase property in which both live, court may nevertheless on licitation order equal division of proceeds of sale if both intend property to be held jointly—intention of joint ownership may be evidenced by transfer into joint ownership and registration of title in both names: Pirito v. Curth (C.A.), 2003–04 GLR 218

if one joint owner provides all or most funds to purchase property in which both live, in absence of different shares stated in conveyance court should determine that ownership held in equal, undivided shares and order proceeds of sale to be divided equally between joint owners: Waterman v. McCormack (C.A.), 2000–02 GLR 283

termination

alienation of interest—property interest of joint owner is droit immobilier or droit reel and may be alienated—alienation of joint interest does not affect right of survivorship and therefore no severance results: Waterman v. McCormack (C.A.), 2000–02 GLR 283

disposal of property interest—disposal by joint owner only after severance—may otherwise result in untoward consequences, e.g. new joint owner wishing to exercise right to occupy house without other joint owner-occupier’s assent: Pirito v. Curth (C.A.), 2003–04 GLR 218

equitable presumptions of English law (e.g. advancement or resulting trust) not incorporated into Guernsey land law—applying Norman law principle, joint owners prima facie entitled to property or proceeds of sale in equal shares: Pirito v. Curth (C.A.), 2003–04 GLR 218

hypothèque—third party registering charge in Livre des Hypothèques, Actes de Cour et Obligations against joint owner of property obtains hypothèque over joint interest—right of survivorship not affected by hypothecation of joint interest and therefore no severance results: Waterman v. McCormack (C.A.), 2000–02 GLR 283

joint owner of property and any owner of land in common entitled to end joint interest, following maxim nul n’est tenu de rester dans l’indivision—indivision ended by agreement, e.g. sale of property or contrat de délaissance, or by order of court, e.g. for licitation or partage: Waterman v. McCormack (C.A.), 2000–02 GLR 283

licitation

if co-owner delays in complying with order for licitation, court may grant other co-owner interim vesting order in respect of property in order to realize interest, after which debtor has no further interest in realty—to consider all circumstances, including delays, unnecessary litigation and justice of each party’s situation: Pirito v. Curth (Royal Ct.), 2003–04 GLR 571

in absence of statement in conveyance as to proportions of joint owners’ interests in property, deemed to hold property, and entitled to proceeds of sale, in equal shares: Waterman v. McCormack (C.A.), 2000–02 GLR 283

postponement of licitation—court may have limited discretion to postpone for short time—burden on party seeking postponement to show that would offer reasonable prospect of resolving problem, e.g. by allowing time to raise funds to buy out other party’s share: Jones v. Le Vallée (Royal Ct.), 2007–08 GLR N [12]

time for licitation—no norm but court to have regard to circumstances of each individual case in deciding when licitation to commence, i.e. if complex issues still to be resolved, 5 months’ delay may be appropriate: Jones v. Le Vallée (Royal Ct.), 2007–08 GLR N [12]

severance—in Guernsey, “severance” is severance of joint ownership, removal of right of survivorship, and substitution of ownership in common: Waterman v. McCormack (C.A.), 2000–02 GLR 283

Congé of Seigneur. See Passing of conveyance—procedure in Sark

Contract of sale

conditions precedent

bornement—arguable that vendor’s failure to obtain bornement (a parochial building condition) by specified date not breach of contract for sale of land if results from purchaser’s non-cooperation: Trinity Inv. Ltd. v. Long Port Properties Ltd. (C.A.), 2000–02 GLR 162

planning permission

if minor adjustment to implementation of planning permission creates conformity with contractual specifications, arguable that no breach of contractual requirement to obtain permission: Trinity Inv. Ltd. v. Long Port Properties Ltd. (C.A.), 2000–02 GLR 162

normal practice to grant permission subject to future approval of details—arguable that permission in these terms satisfies contractual requirement to obtain permission: Trinity Inv. Ltd. v. Long Port Properties Ltd. (C.A.), 2000–02 GLR 162

implied terms

term to be implied to give business efficacy—if incomplete date stated for survey in contract of sale but purchaser to make “immediate” arrangements, court may imply reasonable date, e.g. within 2 months when completion to be within 6 months: F.R. Properties Ltd. v. Skipton (Royal Ct.), 2005–06 GLR 184

incomplete terms

if operative date of condition incompletely prescribed, court to interpret as date most in accordance with parties’ presumed intentions: F.R. Properties Ltd. v. Skipton (C.A.), 2005–06 GLR N [20]

misrepresentation and non-disclosure. See CONTRACT (Misrepresentation and non-disclosure)

Conveyancing

incorporation of plan

court to consider conveyance as whole, including any plan forming part of it—plan may be considered when identifying land boundaries, even if stated to be for identification only—words of description to be preferred if discrepancy with plan—if element of plan referred to in description, plan forms part of specific description: AFR Advocates v. Lovering (P.C.), 2020 GLR 130

plan referred to in conveyance may be considered when identifying land boundaries, even if stated to be for identification only—words of description to be preferred if discrepancy with plan—if element of plan referred to in description, plan forms part of specific description: Lovering v. Atkinson Ferbrache Richardson Advocates & Notaries Public (C.A.), 2018 GLR N [5]

plan referred to in conveyance merely assists in identifying subject-matter unless explicitly incorporated into verbal description: Lovering v. AFR Advocates (Royal Ct.), 2017 GLR N [14]

passing of conveyance. See Passing of conveyance

withdrawal from contract. See Survey—withdrawal from contract

Dominant and servient properties. See Servitudes—right of way

Easements. See Servitudes

English equitable principles

inapplicability if cause hardship

inappropriate to apply English equitable principles affecting land, e.g. constructive trust or proprietary estoppel, if would cause hardship—Guernsey land law based on Norman not English law—hardship need only be merely contingent and not definite, e.g. potential hardship to property owner if mortgagee were to take saisie proceedings: Bougourd v. Woodhead (Royal Ct.), 2009–10 GLR 487

Fiefs. See Ownership of land—fiefs

Final vesting order. See Saisie—interim vesting order

Gift of realty. See SUCCESSION (Légitime—calculating légitime)

Hypothèque. See CIVIL PROCEDURE (Judgments and orders—registration)

Interim vesting order. See Saisie—interim vesting order

Jointly owned property. See Co-ownership

Leases

undue influence

90-year lease of Sark freehold land granted by owner to French wife (who cannot inherit property) not set aside after his death on action by heir: De Carteret v. Surcouf (Royal Ct.), 1997–99 GLR 366

validity in Sark

90-year lease of freehold land granted by owner to French wife (who cannot inherit property) not set aside after his death on action by heir: De Carteret v. Surcouf (Royal Ct.), 1997–99 GLR 366

Court of Seneschal has no residuary power to declare leases void as incumbrances and thus contrary to Letters Patent 1611: De Carteret v. Surcouf (Royal Ct.), 1997–99 GLR 366

lease not void if made without seigneurial consent: De Carteret v. Surcouf (Royal Ct.), 1997–99 GLR 366

Licitation. See Co-ownership—termination

Mortgage

variation of mortgage liabilities on divorce. See FAMILY LAW (Financial provision—property adjustment order)

Nuisance. See TORT (Nuisance—elements of tort)

Ownership of land

fiefs

when ascertaining in which fief disputed land lay, significant weight given to documentary evidence such as livres de perchage: A.W. Holdings Corp. v. Castel Parish Constables (C.A.), 2020 GLR 71

Parking rights. See Property development—parking rights

Passing of conveyance

procedure in Sark

Seneschal to decide as fact whether (a) parties to conveyance before court or validly represented; (b) parties consented to transaction and terms of conveyance; (c) congé of Seigneur given or waived; and (d) treizième paid or waived—in deciding whether to pass conveyance, role as Judge of Seneschal’s Court is judicial not administrative: Barclay v. Beaumont (Royal Ct.), 2007–08 GLR N [17]

Property development

parking rights

owner of development may grant owner of apartment right to use parking garage within development—whether grant of right to use confers possession of parking space on owner of apartment depends on terms of conveyance: Les Banques Holdings Ltd. v. Good (Royal Ct.), 2007–08 GLR N [24]

planning permissions. See Contract of sale—conditions precedent. TORT (Negligence—duty of care)

Reception of English law. See JURISPRUDENCE (Reception of English law—land law)

Renonciation par loi outrée. See Saisie

Right of way. See Servitudes—right of way

Right to use land. See Property development—parking rights

Saisie

interim vesting order

effect of registering interim vesting order in Livre des Hypothèques, Actes de Cour et Obligations to transfer saisine in joint owner-debtor’s property to saisi hérédital, pending completion of process—right of survivorship therefore falls and saisi hérédital obtains undivided share in property formerly in joint ownership: Waterman v. McCormack (C.A.), 2000–02 GLR 283

in saisie proceedings (i.e. renonciation par loi outrée), effect of order to vest debtor’s realty in creditor in order to recover moneys owed, after which debtor has no further interest in realty—court to consider all circumstances, including delays, unnecessary litigation and justice of each party’s situation: Pirito v. Curth (Royal Ct.), 2003–04 GLR 571

no stay of saisie proceedings, pending applicant’s appeal to Privy Council for reinstatement as tenant of hotel previously owned by debtor, if ownership of hotel already vested in creditor by interim vesting order: Trimbee v. Atlantique Holdings Ltd. (Royal Ct.), 2016 GLR N [11]

order severs debtors’ joint ownership of property—where both joint owners of property are judgment debtors, after interim vesting order property vests in saisi hérédital in equal undivided shares—where debt is joint and several, creditor can pursue either debtor or both: In re Gallienne (Saisie proceedings) (Royal Ct.), 2020 GLR 205

saisie proceedings against married couple who were joint debtors in respect of two debts but only husband was debtor in respect of third debt not severed and treated as separate saisie proceedings: In re Gallienne (Saisie proceedings) (Royal Ct.), 2020 GLR 205

under Saisie Procedure (Simplification) (Bailiwick) Order 1952, para. 2(3), interim vesting order vests whole of debtor’s real property in creditor, as trustee for claimants against real property—final vesting order vests real property in creditor personally: Trimbee v. Atlantique Holdings Ltd. (Royal Ct.), 2016 GLR N [11]

under Saisie Procedure (Simplification) (Bailiwick) Order 1952, para. 2(5), court has power to make or postpone interim vesting order—terms not to be construed as enabling court to order new type of interim vesting order, e.g. with condition that remaining equity returned to debtor after debts paid, since judicial law-making would cause considerable uncertainty and change long-established, well-understood procedure: Pirito v. Curth (Royal Ct.), 2003–04 GLR 571

Sale of land

contract of sale. See Contract of sale

sale of property of incapable. See MENTAL HEALTH (Curatelle—sale of realty of incapable)

Servitudes

discharge or modification

compensation for loss or disadvantage caused—under Real Property (Reform) (Guernsey) Law 1987, s.21, compensatable loss to arise strictly from court’s order discharging or modifying servitude—calculation to balance any detriment caused to dominant land by loss of amenity against any benefit accruing to it from development of servient land—mere loss of amenity to dominant land caused otherwise than by court’s order not to be considered, nor potential profit to servient landowner arising from unrelated redevelopment of servient land: Duquemin v. Dunstan Invs. Ltd. (Royal Ct.), 2003–04 GLR 537

court’s power under Real Property (Reform) (Guernsey) Law 1987, s.18 to discharge or modify oppressive or unreasonable “covenants” allows discharge or modification of servitudes—“covenants” to be interpreted in broader sense in Guernsey as including servitudes, not limited to English law categories of covenants: Duquemin v. Dunstan Invs. Ltd. (Royal Ct.), 2003–04 GLR 537

extinction by prescription

servitude continue not extinguished under customary law by non-use since continues to exist without active use, e.g. right to a view—in case of servitude discontinue (requiring positive action to keep in existence, e.g. right of way), servient landowner to show prima facie case of non-exercise during customary prescription period of 20 years and burden then shifts to dominant landowner to show use and therefore non-extinction: Duquemin v. Dunstan Invs. Ltd. (Royal Ct.), 2003–04 GLR 537

implied ancillary rights. See Servitudes—right of way

law applicable

customary law of servitudes currently in force as stated in late 13th century Grand Coutumier de Normandie, with reference to 16th century Coutume Reformée where silent—authoritative commentators largely concentrate on Coutume Reformée and modern Guernsey legislation modifies some details: Duquemin v. Dunstan Invs. Ltd. (Royal Ct.), 2003–04 GLR 537

right of way

ancillary right implied for owner of dominant land to carry out works on servient land to make right of way as effective as originally intended—scope of works limited by necessity, not personal preference of owner of dominant land—owner of servient land to be informed of intention to carry out works, which should be carried out in manner least inconvenient to him: Poulding v. Elliott (Royal Ct.), 2014 GLR 157

Court of Alderney determined in 2016 that right of way existed and directed Land Registrar to amend Alderney Land Register to record right of way as marked on plan—Court of Alderney had no jurisdiction to hear application in 2022 by owner of dominant property for declaration that right of way exists in location where it existed in 2016 and not as erroneously represented on plan—no special circumstances to disapply res judicata: Lewis v. Odoli (Royal Ct.), 2022 GLR N [3]

failure in will of realty to state right of way granted “in perpetuity” not enough to limit right to lifetime of devisee, especially if limiting imputes harsh, capricious intention to testator, e.g. if property landlocked and virtually unsellable without right of way: Russell v. Gillespie (Royal Ct.), 2003–04 GLR 54

Jurats’ finding that right of way with wheelbarrow to obtain furze and other crops from jaonière at far end of property lost by 20 years’ non-user not set aside on appeal: Smith v. Slawther (C.A.), 1997–99 GLR 168

on application to Court of Alderney for declaration as to width of right of way, if no direct evidence, court has discretion as to width—may rely on vue de justice—irrelevant that dominant landowner requires minimum width to obtain planning permission for residential development—on appeal, Royal Court only to interfere with decision if could not reasonably have been made on evidence: Bohan v. Bithell (Royal Ct.), 2014 GLR 347

owner of dominant land not entitled to install ramp on right of way over servient land (to prevent scraping and grounding of car on steep gradient) merely because acquires new car affected in this way—if hazard always present for some vehicles from time right of way granted, dominant owner subject to hazard—not able to rely on ancillary right to make right of way “effective” if seeks to do so out of personal preference rather than necessity: Poulding v. Elliott (Royal Ct.), 2014 GLR 157

owner of servient property not to diminish right or render exercise inconvenient or illusory—if obstruction, e.g. gate erected, and court following English principles in deciding whether to order removal, to ask whether substantial interference: Russell v. Gillespie (Royal Ct.), 2003–04 GLR 54

right is servitude running with land and enforceable by successors in title—any ambiguity in right to be resolved by Jurats in favour of servient land—if route unclear, owner of servient land prima facie entitled to specify it, subject to its being accessible, practical and convenient—valid right of way not precluded by subsequent building on route, if right not limited to open-air exercise, and may have to run through or under building: Duquemin v. Dunstan Invs. Ltd. (Royal Ct.), 2003–04 GLR 537

under customary law, servitude réelle runs with land in perpetuity unless otherwise stated—may therefore be enforced by successors in title unless expressly restricted in title creating it or by agreement of owners of dominant and servient properties: Russell v. Gillespie (Royal Ct.), 2003–04 GLR 54

running with land. See Servitudes—right of way

scope of servitude

scope to be determined according to intentions of parties at time of grant—limitations as to use, e.g. type of vehicle able to use right of way, to be observed unless change required by necessity—if owner of dominant land acquires new car unable to use right of way without inconvenience, not entitled to modify right of way to accommodate personal preference: Poulding v. Elliott (Royal Ct.), 2014 GLR 157

Survey

implied terms. See Contract of sale—implied terms

withdrawal from contract

if satisfactory survey condition precedent of contract of sale, purchaser may withdraw before operative date if unsatisfactory—if no survey by operative date, contract unconditional and purchaser bound to complete: F.R. Properties Ltd. v. Skipton (C.A.), 2005–06 GLR N [20]

Treizième. See Passing of conveyance—procedure in Sark

Unmarried couples. See Co-ownership—termination