ADVOCATES AND SOLICITORS COMMON EXAMINATIONS

Transcription

1 ADVOCATES AND SOLICITORS COMMON EXAMINATIONS LAW OF IMMOVABLE PROPERTY AND CONVEYANCING April 2009 Important Notes 1. Please write legibly - unreadable papers may result in lost marks. 2. Your written paper will have to photocopied so please:- - Write in black ink. - Write well within reasonable margins ie. 1" all round each page. 3. Write your assigned number at the top left hand corner of each page and the page number in the top right hand corner of each page (remembering to keep within the photocopyable margins, ie. 1" all round each page). 4. Number your answers and start each new answer on a new page. 5. Write on one side of the paper only. 6. Part A - answer 3 questions Part B - answer 2 questions 7. All questions carry equal marks and each part of each question carries the stipulated marks. 8. Support your questions wherever possible by reference to statutory, judicial or other authority. Give reasons for your answers. 9. Time allowed: 3 hours

2 PART 1 1. (a) What is a servitude? How may a servitude be established and how may it be extinguished? Marks [12] (b) Write notes on the following:- voisinage; and (ii) joint ownership and ownership in common. Marks [8] 2. You are consulted by Hill Street Bank which has received a request from its customer, Gordon G, for a loan. The Bank is minded to agree to the loan, subject to appropriate security being provided. Gordon G. has told the Bank that he is prepared to put up the following assets by way of security:- the usufruit or life enjoyment which he has over the property "La Longue Caserne", St Martin, which was granted to him under his late aunt's Will; (ii) a joint interest in the property "Le Mont Blanc", St John, which he purchased jointly with his brother ("conjointement par ensemble, pour eux, le survivant d'eux et les hoirs de tel survivant") by contract passed before the Court in 1994; (iii) a flying freehold flat which he purchased by contract passed before Court in 2001; (iv) a 21 year contract lease of premises on The Esplanade, St Helier; (v) the benefit of a simple conventional hypothec which was created in his favour by contract passed before the Court in 2000; (vi) a côtil in Grouville in which he has grown new potatoes for some 45 years but which he has never formally acquired and the ownership of which was unknown when he first started using it; (vii) the property "La Maison Rouge", St Mary, which he inherited under the Will of Immovable Estate of his mother in 1995 and which is currently occupied by his father; and (viii) an eight year paper lease of a shop on Gorey Pier. Please advise the Bank on whether the Bank may take a hypothec over the assets described above. Please also draw the Bank's

3 attention to any matters which you consider would be relevant to the Bank when making a decision on whether or not to take such a hypothec over a particular asset. Marks [20] 3. You act for Andrew A. who on the 4th November 1992 acquired the property "La Grande Maison", St John from Peter P. Peter P. had inherited "La Grande Maison" and the immediately adjoining property "Le Petite Maison" under the Will of his late mother in The two properties are situated in a residential part of St Helier. On the same day as Andrew acquired "La Grande Maison", Peter sold "La Petite Maison" to Malcolm X. Pedestrian and vehicular access to "La Grande Maison" from the public road is gained (and has always been gained) via a roadway which runs from the public road across the garden of "La Petite Maison". The roadway forms part of "La Petite Maison". Andrew has obtained planning permission to demolish "La Grande Maison" and to develop the site into 4 houses. Andrew consults you in relation to the access to the site, as he has received a letter from Malcolm stating that neither Andrew's or Malcolm's contracts of purchase make reference to a right of way in favour of Andrew over the roadway or over any part of "La Petite Maison" and therefore Andrew has no legal right to pass over any part of "La Petite Maison". You check Andrew's and Malcolm's contacts and find that there is indeed no reference to a right of way in favour of Andrew. Please advise Andrew. How would your advice differ (if at all) if "La Grande Maison" and "La Petite Maison" did not share a common title? Marks [20] 4. (a) Please explain the meaning of the following terms which appear in the Loi (1880) sur la Propriété Foncière: corps de biens fonds; (ii) hypothèques conventionnelles; (iii) droit de suite par hypothèque. Marks [12] (b) Some time ago, your client John J repaid two charges secured upon his property. One charge was in favour of The Bank of Sark Limited and was secured by way of hypothèque judiciaire. The other

4 charge was secured by way of hypothèque conventionnelle simple and was in favour of Robert Jones, a UK resident. Repeated requests by you on John's behalf to the Bank to cancel its charge have finally elicted the response from the Bank that it has lost the relevant Act of Court. The Deed of Reimbursement which you sent to Mr Jones' lawyers for signature by their client soon after John had repaid the charge has never been returned, despite repeated reminders from you. When you contact the lawyers, you are told that Mr Jones has died and the whereabouts of his heirs are unknown. John is about to sell his property and wishes to see the charges removed. Please advise. Marks [8]

5 PART 2 5. You act for Bill B. who owns a field in the Parish of St John which he purchased in An extract from his contract of purchase appears below:- ". une certaine pièce de terre appelée "Le Clos de Mont Mado" portant le numéro 007 sur la Carte de Jersey dite "Ordnance Survey Map" avec la mitoyennété des trois bornes (ci-après décrites) de l'est, la mitoyennété (sans relief) des trois bornes (ci-après décrites) de l'ouest et la propriété du mur et relief du Sud. Le tout se tenant et joignant ensemble joignant par l'est à la propriété appartenant à Monsr. John Le Gros, par l'ouest à la propriété appartenant à Dlle Elizabeth Miller, par le Nord à la propriété appartenant à la Société à responsabilitée limitée dite "Mado Limited" et bordant par le Sud sur le chemin public". The contract goes on to describe the three boundary stones of the East and to state that they are "mitoyennes pour être maintenues et entretenues comme telles à fin d'héritage". The contract then describes the three boundary stones of the West and states that they are "mitoyennes (sans relief) par être maintenues et entreteues comme telles à fin d'héritage". The only clause which appears in the contract is as follows:- "Que le mur du Nord de ladite pièce de terre présentement vendue vers la propriété appartenant à ladite Société "Mado Limited" est la propriété avec relief de ladite Société". Bill has recently received planning permission to construct a house on the field. Bill proposes to build the house as close as legally possible to the northern neighbouring property belonging to Mado Limited and to establish windows in the northern elevation of the house. The house will be set well back from the Eastern and Western boundaries, however Bill proposes to construct garden walls as close as legally possible to those boundaries. Please advise Bill on his proposals and any issues you foresee may arise if he proceeds in accordance with his proposals. Marks [20]

6 6. You act for a local development company which bought a field in the Parish of St Peter in The company consults you on the following matters:- (a) The field adjoins by its eastern side the property known as "Les Sablons" belonging to Mr Peter De Gruchy and is divided from "Les Sablons" by means of a wall which belongs, without relief, to the owner of "Les Sablons". Your client company's contract of purchase contains the following clause:- "QUE ladite Société Acquéreuse aura droit de jointure contre le mur de l'ouest de ladite propriété "Les Sablons" appartenant audit Sieur de Gruchy et ce pour aucun mur ou autre construction que ladite Société Acquéreuse pourra faire ériger ou construire sur ladite pièce de terre présentement vendue". Your client company proposes to construct the gable wall of one of the houses it proposes to build on the field right up against the wall belonging to Mr de Gruchy. The gable wall of the house will be considerably higher than the height of Mr de Gruchy's wall and part of the roof of the house and its gutters will overhang Mr de Gruchy's wall. Mr de Gruchy has told your client that as its "droit de jointure" is only exercisable against his wall, your client may only build higher than his wall if it sets back the higher part of the gable wall by 16½ inches from the boundary. Please advise your client company on what Mr de Gruchy has said and advise your client what rights (if any) it needs to obtain from Mr de Gruchy in order to enable its proposals to proceed. Marks [8] (b) Your client company has discovered that in order to connect the development which it proposes to construct on the field to the public drain, it will need to lay drain pipes through a neighbouring field belonging to Mr Helier Messervy. Mr Messervy inherited the field under the Will of his late father. The field is let by Mr Messervy to "Grow It Limited" (a company owned by his mother) under a 21 year contract lease. "Grow It Limited" uses the field to grow cauliflowers. Please advise your client company what needs to be done to establish the relevant rights and with whom your client company will need to transact in this regard. Please also advise your client company on the nature of the clauses which are likely to appear in any contract of arrangement. Marks [12]

7 7. You act for Jack and Jill who own No. 7 Les Monts, St Brelade, which they purchased in No. 7 is one of a row of eight houses. Jack and Jill consult you on the following matters:- (a) Jack and Jill propose to construct a conservatory on the garden at the front of their house. A number of other owners in the row of houses have already constructed conservatories similar to the one proposed by your clients. Jack and Jill ask you if, subject to obtaining appropriate planning consent, there would be any legal problems in constructing the conservatory. You look at Jack and Jill's contract of purchase and discover the following clause:- "QUE nulle construction quelconque ne sera jamais construite ni placée sur le jardin formant partie de ladite propriété présentement vendue et situé en devant de ladite maison formant partie de ladite propriété présentement vendue". What further research would you carry out in order to advise your clients fully? (ii) Assuming that your further researches confirmed that there would be a legal difficulty in constructing the conservatory, what advice would you give your clients, in order to enable them to resolve the difficulty? Marks [10] (b) Behind the row of houses there is an area of communal open land. The contracts of purchase of all the properties in the row of houses contain the following clause:- "QUE le terrain ouvert situé en derrière de ladite rangée de maisons sera en commun entre lesdits propriétaires de ladite rangée de maisons pour être maintenu et entretenu comme tel à fin d'héritage". Jack and Jill tell you that six out of the eight owners in the row of houses wish to construct a summer house on the open land for use by the owners of the row of houses. Jack and Jill and their immediate neighbours at No. 6 are however unhappy at the proposals, as they wish the land to remain open. Please advise Jack and Jill as to their rights. Marks [4]

8 (c) Finally, Jack and Jill ask you to explain the following terms which appear in their contract of purchase: "Le tout à fin d'heritage"; (ii) "Le tout tel qu'il est avec tout et autant de droits, appartenances et dépendances comme en peuvent appartenir et dans l'état où ladite propriété se trouve avec tous ses vices apparents ou cachés s'ils existent situé en la Paroisse de Saint Brélade, Vingtaine du Coin". (iii) "Et jurèrent lesdites parties que jamais contre les prémisses elles n'iront ni ne feront aller, à quoi nous les condamnâmes à peine de parjure". Marks [6]