Guernsey terms and English legal relations: a brief comparison.

Anna Douglas and Alastair Hargreaves highlight the similarities and differences between the laws of Guernsey and the laws of England and Wales in relation to easements and restricted rights.

There are three separate legal systems within Ballye Guernsey: the Laws of Guernsey, the Laws of Sark and the Laws of Alderney. Although there are other smaller islands in Ballywick, they are dealt with generally and are subject to the relevant laws of the island on which they are located.

In this article, we look at the law governing easements in Guernsey and the relationship with similar English rights of restricted rights.

Background and context

Although Guernsey is less than 180 miles from London, in some respects it is a very different world in terms of legislation compared to England and Wales. Despite the influence of English common law, the Royal Court of Guernsey also looks to other Commonwealth countries and sometimes to French law for solutions when they are not currently available.

Historically speaking, Guernsey's legislative body has its roots in the early 10th century and the Norman state. Normandy customary law is the basis of the local legal system, especially in the context of real estate, to this day. Customary law is essentially an unwritten law, enacted by application, tacitly accepted and observed by those who voluntarily submit to it, and which in time acquires the force of law. Over time, various commentators began to record what customary rules were considered to be in force at the time, providing us with a rich and informative source for historical research.

Servitudes: real and personal

Servitudes have long been a subject of academic study. The current French Civil Code defines an easement as an encumbrance on the title to real estate for the purpose of satisfying the needs and utility of the property right of another property owner. This definition also applies to Guernsey. As might be expected, the operation of an easement requires both a dominant owner and a servient owner under different ownerships.

Although the issue was not tested before the Royal Court, an easement is also likely to have some of the characteristics described at English common law in the Re Ellenborough Park case. In Guernsey, an easement can be either 'real' (immeuble in Guernsey terms) or 'personal'. A real easement is a right over land that can be recorded in the records of the island in His Majesty's mane (archive office).

The real easement was described in the Royal Court's decision in Russell and Kane v Gillespie as "the essence being that the burden lies on the servient land (and the benefit on the dominant land), creating a right which can be exercised by successors in title." We will return to the three types of 'real easement' below for a comparative analysis with England and Wales.

In contrast to a 'real easement', a 'personal easement' is specific to a person and takes the form of a right of use or right of occupancy. It is not intended to (and need not) be binding on successors in title to real property.

The three types of real easements

Broadly speaking (and certainly with some exceptions), the three types of real easements include:

• those that are established by human action or by an explicit transaction;
those established by law;
• natural easements.

A practical example of the first type of real easement might be a "tour d'echelle" (the historic right to place a ladder on a neighbor's land to repair one's own property). With the introduction of the Access to Neighboring Land (Guernsey) Act 2016, the granting of a tour d'echelle is hardly ever used.

An example of the second type of real easement is where a piece of land is occupied (similar to the situation of land with no road access). In this case, Guernsey customary law grants the landowner the right of access to the nearest public road through neighboring land by the shortest possible route consistent with common sense and minimal harm.

An example of the third type of real easement would be rainwater runoff from high lots to low lots.

Maxima Guernsey: "nil servitude sans titre "

Maxima Guernsey: 'nil servitude sans titre' was expounded by the academic commentator and Rouen lawyer Henri Basnage de Beauval (1656-1710). He argued that the common law of the time stated that there would be no easement unless it was stated in a document (although this would be a rebuttable presumption in the case of a natural easement and also in the case of boundary wall agreements).

In essence, if there is no easement right formally set out in the document, the easement is invalid and cannot be acquired by statute of limitations, regardless of the time of informal use. This is fundamentally different from the situation in England and Wales. It is also important to note that in Guernsey an easement can be lost through non-use (prescription), as confirmed by the Guernsey Court of Appeal decision in Smith v Slaughter. These considerations are the starting point for today's Guernsey legislator.

Conceptually, the maxim "nil servitude" is a very important evaluation criterion because if a Guernsey transaction does not include the necessary easement, or if the easement is not sufficiently accurately or broadly described, then it either does not exist at all or does not exist in a sufficiently effective manner. Therefore, the Hernsian title deeds usually contain very detailed descriptions.

In Guernsey, where easements do not exist or are found to be invalid, the owners of both the dominant and servient plots will have to agree to rectify the deed in the Royal Courts of Justice (Contract Litigation Division) by way of a Reform. The practice of obtaining the registered lienholder's consent to such a correction is not common because their lien is actually being improved and it would be illogical not to consent to its correction. Guernsey has no such protective and word-saving provisions as those in section 62 of the Law of Property Act 1925 (LPA) to which we now turn.

England and Wales

England and Wales, unlike Guernsey, has both statutory and contractual easements. This article deals with the former. There are more than 10 pieces of legislation in this area that complement the General Titles Act, ranging from the Rural Rights of Way and Rights of Way Act 2000 to the Road Traffic Act 1988.

It can be said that the paperwork on the mainland requires much more consideration than in Guernsey, although the results of a transaction can be very similar.

Because the express grant of an easement requires a contract and the execution of a grantor under Article 65 of the General Law of Property Act, the idea of including a deed in relation to rights represents Guernsey's unstrict conformity with the common law. The position in England and Wales is strengthened further in the case of registered land. In this case, if the subordinate land is registered, the easement right must also be registered to operate in accordance with the law, as it constitutes a registrable transaction.

The differences between England and Wales and Guernsey arise in the case of purported grants of easement rights. The point is that the common will of the parties is sufficient to confer a right, as stated in Pwllbach Colliery Co Ltd v Woodman, although this would not be possible in Guernsey.

There is also no equivalent in Guernsey to the rule in Wheeldon v Burrows in the case of alienation of part of a piece of Guernsey property, requiring consideration of issues such as quasi-servitudes in the land abandoned with the characteristics of continuity and obviousness, amongst other things.

As mentioned above, there is no statutory equivalent to section 62 of the Law of Property Act in Guernsey. This statutory mechanism requires consideration of many factors, including the limits of its application and its exclusion in the event of a contrary intention stated in the contract.

While the issue of compulsory easements is common to both jurisdictions, such as those providing passage for a parcel of land without access to a road, early seventeenth-century pre-trial English jurisprudence already indicated that courts favored arguments about the parties' presumed intent to include a right of way in any sale. Not surprisingly, this is a difficult area, as one must prove "necessity" under the civil standard, ie. with a balance of probabilities.

Prescription

It is impossible not to mention one of the fundamental differences between Guernsey and England and Wales in relation to prescription. Although it is the basis of detailed commentary because of its complexity, the position on the mainland regarding the acquisition of a right by long use has its roots in Roman law and the requirements of "nec vi, nec clam, nec precario".

This phrase was translated by Lord Hoffmann in the case of R. v Oxfordshire County Council ex p. Sunningwell Parish Council as "not by force, secretly or by consent of the owner". As might be expected, there are other prerequisites that must be met for a right to be effectively acquired.

In contrast to Guernsey, excellent rights can be effective in three cases: at common law, under the doctrine of forfeited modern grant (1189) and under the 1832 Prescription Act. This piece of legislation introduces the statute of repose and the now familiar 20 and 40 year time limits; the former asserts the right as a defense to the objection that the right did not exist in 1189, and the latter (mostly) establishes it as an absolute and immediate right.

Findings

Despite the two significantly different legal systems in Guernsey and in England and Wales, and particularly in relation to easements and restrictions on rights, there are still similarities. Consideration of easements of necessity and natural easements are examples of symmetry, also certain elements of "nil servitude sans titre" and the requirements of Article 65 of the Universal Title Act. Guernsey common law has proven itself capable of coping with the intricacies of twenty-first century conventional rights (albeit with some legislative infrastructure and common law interference), and English law achieves a similar result through its legislative framework. Understanding Differences.