“The Perils and Pitfalls of Property”

Tuesday 19th November, 2013

Introduction Michael Falle Conveyancer LWR Law I commenced my training at the firm of Ogier & Le Cornu in 1993 under Conveyancers; Graham Andrews and Paul Deveau. As an improving trainee in moved to Jenners under Conveyancer; Nick Cabot. Since when I have held permanent positions at the firms of Voisin, Benest & Syvret and Viberts.

Q. What is a Conveyancer?

A. A Lawyers’ Clerk Conveyancers cannot present contracts. Narrow field of expertise common only to Jersey – a career cul-de-sac! No worthwhile qualification currently available. Knowledge gained through vocational training and hands on experience. Knowledge of French will always remain of vital importance. A largely practical and administrative skill. Fundamental to the local property market economy. Integral to the building industry.

Who’s who in Conveyancing? Lawyers specialising in Jersey Property

John Bisson (semi retired) Martin le Boutillier Wendy Lambert

Tim Hart Stephen Crane Julie Melia

Guy le Sueur Mike Backhurst Katharine Marshall

Peter Bertram Michelle Leverington Jonathan Hughes

Andrew Begg Tony del Amo Kate Westwater

Philip Syvret Paul Scally Carl Parslow

Andy Pim Nigel le Gresley Steven Slater

Daniel Young Philip Livingstone Robin Troy

Simon Young Richard Renouf James Lawrence

George Cook Angela Roscouet John Kendall

John Kelleher Michelle Palmer Gio Polano

Chris Philpott Kevin Manning Paul Harben

Who’s who in Conveyancing? Current Conveyancers

Michael Bougeard Tony de Louche Anna Carter

David le Brocq David Siouville Martin le Maistre

Austen Chevalier Marcia Lee Alison le Breton

Nick Cabot Alex Bassford Robin Gilmour

Paul Deveau David le Peurian Eric Salaun

Chris Aubin Jean le Miere (semi retired) Bob Aubert

Dominic Boletta Michael Falle Lee Howard

Dan Ferguson Stephan Rault Bob Dingle

Chris Duverger Gavin Renault Lara Tandy

Shaun O’Connor Paul Beaugie Sinclair Forrest

Jonathan Dauny Wendy Luce Denis Worrall

Charles le Maistre Barry le Feuvre Paul Watson

Trevor Rabet Tim Bechelet Nick Dodsley

Debbie Salaun Mark Carboulec Ross Shakeshaft

Everybody is living longer these days?

Paul Bisson – Died in service aged 40

Paul Gauvin – Died in service aged 48

Andrew le Quesne – Died in service aged 56

Gary Sowden – Died in service aged 57

Robin Cox – Died in service aged 62

Mervyn Sullivan – Died in service aged 65

Roy Gallichan – Died following a very short retirement aged 66/7

What does a Conveyancer do?

• Lawyers generally have limited practical involvement in the Conveyancing process. They underwrite the process and manage the industry.

• Conveyancers defer to Lawyers on points of Law.

• With the exception of a very few Jersey Law firms, Conveyancers facilitate all aspects of property transactions in the island.

Check Title

• As in all industries, terms and abbreviations are used. The “title check” is an encompassing term which describes the practical work involved in passing a transaction, but what does that include?

Conveyancers check: • That the person selling exclusively owns and is

entitled to sell all of the property to you.

• That the boundaries have not been altered, overstated and are clearly defined without encroachments.

• If ownership has previously passed by succession, that there are no other heirs entitled to a claim and that any conditions attached to that succession have been satisfied.

• That there have been no previous transactions which could be set aside by the Viscount.

Conveyancers check:

Leases,

Life Enjoyment (usufruit) &

Dower

Possession and enjoyment could belong to someone else.

Mortgages Your property could already be security for pre-existing

debts.

Restrictive Covenants Your property could come with binding restrictions,

preventing you from building or using it in some specific

way.

That no third parties have interests or rights over the property, for example:

Conveyancers check:

Negative Servitudes Other people may have the right to use or have access to

the property in some way.

Statutory rights Utility companies could make use of the property.

Planning conditions If built or extended in the last 20 years, the Planning

department may have imposed binding conditions.

That no third parties have interests or rights over the property, for example:

Conveyancers check: That the property is compliant with legislation, for example:

• It could be built contrary to the terms of law. At worst case certain States authorities could have the power to order its demolition.

• It may have a well or borehole that needs to be registered or a private drain which requires a discharge permit, to avoid a fine or prosecution.

• It may require a fire certificate for which an inspection by the authorities may result in extensive alterations being made.

Conveyancers check:

• That the property has all necessary and enforceable rights over other properties, for example:-

• Rights of way.

• Rights for pipes, cables and drains.

• Rights of access onto a neighbour’s property to maintain or repair your property.

• Rights to park on land belonging to another.

• The above are likely to come with obligations and Conveyancers will check that these are not excessive.

Conveyancers check: • That the property has been approved for the

use to which you intend to put it.

• That the property is not the subject of a closure order or similar, not tabled for compulsory purchase and that it will not be affected by planned road-widening or other development.

• That you will not become liable for taxes or other charges on the property, in some cases including GST.

Conveyancers check: • In addition to the above, if buying a share transfer (ST)

or flying freehold (FF) property:-

• That; the ST vendor is recorded in the company records as the true sole owner of the block of shares; & that the history of ownership of the block of shares can be verified as correct in the company records.

• That the ST block of shares is free from any mortgage or other debt and if not, make sure that the mortgage will be repaid and discharged from those shares.

• That the ownership of the ST shares properly conveys the rights of exclusive use to the flat or apartment to you without unusual or unexpected obligations attached.

Conveyancers check:

• That the statutory records of the ST company are in good order and that company legislation has been complied with.

• That there are no unusual terms which could affect the transfer of the ST shares.

• That the FF Declaration is compliant with the FF law and that it:-

• Properly conveys the rights of exclusive use of the flat or apartment to you and that no unusual or unexpected obligations are placed on you.

• Does not contain any onerous or unexpected rules or prohibitions as to the use or enjoyment of your apartment.

• Provides clear provision as to how the Association and its property shall be administered.

Conveyancers check: • That annual accounts of the ST company or FF

Association have been prepared and approved by the shareholders or co-owners (as necessary).

• That the ST company or FF association has fully insured the property.

• That all past meetings of the Directors and shareholders or Co-owners have been properly held in accordance with the ST company’s articles or FF Declaration and these meetings are duly and correctly recorded in minutes which have been duly signed and filed.

• That the register of Directors, Secretary and Shareholders of the ST company are up to date and accurate

Conveyancers check: • Whether the Directors or Shareholders of the ST

company or FF Association have imposed any house rules or regulations effecting your enjoyment of the flat or apartment.

• That all service charges are paid up to date and that no outstanding charges have accrued which may be passed over to you with the property.

• That the ST company or FF Association has sufficient funds to meet any pending or envisaged extraordinary expenditure. Part of this work involves researching what expenses may arise in the near future.

Property ownership in Jersey

• All land in Jersey originally belonged to the Crown.

• The Crown granted ownership of Jersey land under Letters Patent divided into fiefdoms (Fiefs) to Feudal Lords.

• The Feudal Lords or Seigneurs alienated land into private ownership mainly before written records were kept.

Property Records

The ancient procedure of the ouie de paroisse, whereby transactions in property were solemnised verbally in the churchyard before witnesses after divine service and thus committed to the communal memory of the parish was liable to abuse in that ignorant or dishonest witnesses could testify to fraudulent transactions. By the 16th century, the written deed or contract came to be regarded as the principal evidence of the transaction. But contracts were easily lost or destroyed, and so the need became apparent for some form of official register in which they could be enrolled as a safeguard. States of Jersey Public Registry

Property Records In 1602, the present Public Registry was instituted by the States of Jersey. Sir Walter Raleigh, who was then Governor of Jersey as was on one of his visits to the Island at the time, attended the States sitting on 24th June 1602, when the Act creating the Registry was passed. This Act gave full details of the organisation of the Registry and the procedure for registering documents. Its provisions were re-enacted with some modifications in the Code of 1771 being the one that has the force of law today. States of Jersey Public

Registry.

R E

G

I

S

T

R

A

R

S

Spiritual home and natural habitat of the Conveyancer

Computerisation of the Registry Records in the 1990’s

Sources of Property Law

• Customary Law

• Text

• Case Law

• Legislation (Statutory Law)

• Contract terms

Property Tenure

• Freehold

• Leasehold

• Share Transfer

• Flying Freehold

Maxim

“qui a le sol a le dessus et le dessous”

(Heaven to Hell)

Types of Contract

• Sale/purchase

• Transaction

• Lease

• HCS (contract mortgage)

• Partage (contract of division)

Looking at a contract.

• 1602 – 2006 All contracts in French.

• 2006 to date a change to the Royal Court Rules French contracts would no longer be accepted.

! Always treat English translations of French text with Suspicion!

Standard Introduction:

The Parties:

Co-ownership Joint Ownership: Jointly for the survivor(s) “conjointement par ensemble, pour eux, le survivant d’eux et les hoirs ou ayant droit de tel survivant” Ownership in Common: owned in undivided shares Can be in unequal shares Shares can be transacted with including mortgaged separately.

“Action en Licitation”

Type of transaction, description of property & boundary claims:

Boundaries

“tours d’échelle”

Boundary Stones

Co-ordinated Boundaries:

Boundary Encroachments!

The Jointures

Boundary Lines

Covenants and Servitudes

Rules.

Maxim; “nulle servitude sans titre” “fonds servant” or the servient tenement & “fonds dominant” or dominant tenement must both be corpora fundi. Clarity: “The intention must be gathered from the instrument itself”; where there is ambiguity; “the ambiguous words are to be interpreted in favour of the freedom of the servient tenement” “Words must be taken in their ordinary sense”

Exception:

destination de père de famille

Reciprocal Enforcement:

Harris v Mont Gras d’Eau Investments Limited (1980) JJ187

Property searches.

Property searches.

Property searches.

Property searches.

Property searches.

Property searches.

Creation of clauses

buyer beware!

The “provenance”

Remainder of the contract:

“The Perils and Pitfalls of Property”

Tuesday 19th November, 2013