Jersey Unreported Judgments

ROYAL COURT

(Samedi Division)

4 November 1998

Before: Sir Philip M Bailhache, Kt, Bailiff of Jersey, assisted by

Jurats Myles and Le Breton

Representation of Alan James Blampied and Stephanie Josiane Blampied,

née Dugler, re: Croydon Terrace.

Application to rectify contracts of sale of properties.

Advocate B E Troy for the Representors

P Matthews Esq., Crown Advocate as Amicus Curiae

JUDGMENT

THE BAILIFF: This is a representation by Alan James Blampied and Stephanie Josiane Blampied, née Dugler, seeking rectification of a number of contracts of sale of neighbouring properties containing a provision which might seriously affect the title to their property, No. 2 Croydon Mews, Bellozanne Road, St. Helier. The history can best be understood by reference to a sketch plan put before us by Counsel which is attached to this judgment. The short history is that the representors acquired No.2 Croydon Mews by contract dated 31 January 1997, from Thomas Hannah who was in right of the limited liability company Herent Limited which in turn had purchased from a company called Roderick Enterprises Limited. The property in question forms part of a residential development which took place in two stages on land adjoining Tower Road and Bellozanne Avenue. At the first stage on the north and north-eastern parts of land which it had purchased in 1981, Roderick Enterprises Limited renovated a number of houses in a terrace called Croydon Terrace. They also constructed on the land immediately to the south of Croydon Terrace an access roadway in order to gain access to the property. Most of the contracts of sale by which Roderick Enterprises Limited subsequently sold to individual purchasers contained the following restrictive covenant:-

The contract of sale of No. 9 Croydon Terrace was however in slightly different terms so far as the restrictive covenant is concerned, and that covenant read as follows:-

The contracts for Nos. 1A and 2, Croydon Terrace, which face west towards Bellozanne Avenue, contain a restrictive covenant in similar terms to that set out for the bulk of properties in Croydon Terrace, except that the restriction relates not to the south, but to the west of the houses in question. The covenant reads:-

After the renovation of Croydon Terrace and the access roadway had been completed, the balance of the land acquired by Roderick Enterprises Limited was sold to Herent Limited, (we shall revert to that in due course). The question has now been raised whether the restrictive covenants created by Roderick Enterprises Limited when Nos. 4 to 8 and Nos. 10 Croydon Terrace and indeed Nos. 1A and 2 Croydon Terrace, were conveyed to various purchasers was intended to prevent any building on the southern side of the roadway or to the west of Nos. 1A and 2 Croydon Terrace. If the answer is in the affirmative, the property owned by the representors and indeed each of Nos. 1 to 7 Croydon Mews has been constructed in breach of that covenant and could be required to be demolished.

Mr Troy has argued that the Court has the power to order the rectification of the contracts of sale of Nos. 4 to 8 and No. 10 Croydon Terrace and indeed Nos. 1A and 2 Croydon Terrace by the addition to the covenant of words which are to be found in the contract for the sale of No. 9 Croydon Terrace, that is to say - "sur le terrain formant partie de ladite propriété présentement vendue". This would make it clear that the covenant prevented building works only on the gardens to the south or to the west of the properties as the case may be, and not upon the land which Roderick Enterprises Limited sold to Herent Limited and upon which Croydon Mews was subsequently built.

The representation was served upon all the owners of properties in Croydon Terrace and Croydon Mews who were convened before the Court. None of them has opposed the making of the order sought by the representors and some have submitted à la sagesse de la Cour. Nevertheless, the Court is not satisfied that it would be right to order rectification of these contracts for a number of reasons, not the least of which is that none of the parties to the contracts in question has addressed any arguments to us. The representors are not parties to the contracts and we doubt that we have jurisdiction to make such orders.

Mr. Troy drew our attention to a passage from Chitty on Contracts which emphasised that the jurisdiction to order rectification was to be exercised with great caution and care. Even if we do have the jurisdiction to make the order sought, we do not consider that this is an appropriate case for the exercise of that power. Mr Troy did however urge us, in the event of our refusing to order rectification, to interpret the clauses. It is clearly of importance to all the owners in this small estate that their legal rights and obligations towards each other should be made clear.

The first question which the Court has to decide is whether there is any ambiguity; did these clauses impose a servitude upon Roderick Enterprises Limited and its successors in title which effectively prevented the construction of Nos. 1 to 7 Croydon Mews?

Pothier in his Traité des Obligations (1821) Tome 1, Article 7, Rule 1 lays down a number of rules for the interpretation of contracts. The first rule is that:-

Counsel argued that the intention of the parties at the material time was to create what is called an estate clause which imposed mutually binding obligations upon the owners of all the properties in Croydon Terrace not to build upon the small gardens in front of their houses. Mr Troy called Mr Nigel Le Gresley, a solicitor of the Royal Court, to give expert evidence on the wording of estate clauses and to give evidence as to his acting for the purchaser of No. 9 Croydon Terrace when the different wording to which we have referred was included. Mr Le Gresley told the Court that he felt that the wording of the clause in previous contracts relating to adjourning properties had been ambiguous and that he wished to make it clear that the restriction affected only the garden in front of No. 9 Croydon Terrace which had been the common intention of the parties.

The land upon which Croydon Mews was subsequently built was sold by Roderick Enterprises Limited to Herent Limited by deed dated the 13 September 1985. It is undoubtedly the case that the land was sold for development. The land was developed and no protest was made by any of the owners of Croydon Terrace either at the time or subsequently to the effect that such development was in breach of a restrictive covenant in their favour. The deed by which Roderick Enterprises Limited sold to Herent Limited, which is of course the predecessor in title of the representors, is noteworthy in two other respects. Firstly, clause 10 reproduces the restrictive covenant found in the Contracts of Sale of Nos. 4 to 8 and No. 10 Croydon Terrace in these terms:-

Secondly, clause 16 confers a right upon Herent Limited to connect any new properties constructed on the land which was being conveyed to the mains water supply. Clause 16 reads as follows:-

Pothier0s sixth rule of construction in his "Traité des Obligations" (1821 Ed’n) Tome I, Article 7 at p89, provides:-

Applying that principle it is crystal clear that both Roderick Enterprises Limited and Herent Limited contemplated that more houses would be constructed on the land to the south of Croydon Terrace. So far as Roderick Enterprises Limited is concerned, it is inconceivable that it would have intended to create a servitude in its contracts of sale of properties in Croydon Terrace, which effectively prevented it from selling for development the land to the south. None of the other parties to those contracts has sought to argue to contrary effect.

We accordingly find that there is an ambiguity in the extent of the obligation created by the restrictive clauses in the contracts conveying Nos. 4 to 8 and 10 Croydon Terrace and No. 1A and 2 Croydon Terrace. In our judgment the intention of the parties was to limit that restriction to the gardens to the south or to the west as the case may be and forming part of the properties conveyed. We so interpret the clauses in those contracts and we rule accordingly. We direct the Judicial Greffier to make an appropriate marginal note against the entries of those contracts in the relevant Registers of the Public Registry.

Authorities

Le Pennec -v- Romeril (9 March 1995) Jersey Unreported

Dalloz: Jurisprudence Générale - Les Codes Annotés (1873 Ed’n) pp.1003-1006

Pothier: Traité des Obligations (1821 Ed’n) p.86-94

Pothier: Coutumes d’Orléans (1821 Ed’n) p.216-248

Pothier: A Treatise on the Law of Obligations on Contracts, translated from the French by William David Evans, Esq., Barrister at Law (1806) Vol. II p.35-40

Chitty on Contracts (27 Ed’n) Vol 1: General Principles p.320-323