Disputes over Jersey property – servitudes
What is a right of servitude?
Under Jersey Property Law a right of servitude is a right:
- to make use of the property of another
- to prevent the owner of the property from making certain use of it
Servitudes can be affirmative (i.e. one which obliges the owner of the servient tenement to allow the owner of the dominant tenement to exercise the right in relation to the servient tenement which, but for the existence of the servitude, he would not be entitled to exercise, e.g. a right of way) or negative (i.e. one which prohibits the owner of the servient tenement from exercising an ordinary right of property in relation to the servient tenement which, but for the existence of the servitude, he would be entitled to exercise, e.g. a restriction upon building in such a way as to obstruct the neighbouring property’s light).
Types of Jersey property servitudes
Examples of servitudes are as follows (there are many other examples):
- right to lay drains water pipes etc over neighbour’s land
- rights of way over neighbour’s land
- restriction over property to create more than one dwelling at a property
- restrictions on building on land
- restriction as to use of property.
How is a servitude created?
Jersey freehold property servitudes can be created in three ways:
- those arising by agreement (i.e. created by the parties)
- those arising by operation of law
- those arising naturally (by reason of the relative position of the properties).
What happens if you breach a servitude?
If a property owner breaches a servitude that exists over their Jersey property the property owner may find themselves actioned in the Royal Court to enforce the servitude rights or obligations. In cases such as where a landowner has for example built on land which is subject to a building restriction the Royal Court may order the removal of the offending structure. It is therefore imperative that where your freehold contract sets out servitudes these are carefully considered before embarking on any project.
When to seek legal advice?
Jersey property law dealing with servitudes can be complicated. A cursory review of the contract may provide a layman with an indication of the obligations, but the customary law of Jersey relating to property law must also be factored in. This may have a bearing on the issue in question and can be an issue that needs to be considered. We would suggest that you seek Jersey law property advice before engagement to avoid costly issues. A dispute involving a breach of servitude obligations can end up very expensive. You may find the only way to resolve the issue is Royal Court proceedings.