Jersey Unreported Judgments

Boundary dispute - application by the plaintiff for the first defendant to exhibit title.

[2017]JRC157

Royal Court

(Samedi)

29 September 2017

Before     :		J. A. Clyde-Smith, Esq., Commissioner, and Jurats Blampied and Christensen.
Between	Rose Elizabeth Boyle		Plaintiff
And	Highfield Country Apartments Association		First Defendant
And	John Charles Nicholson and Sarah-Ann Nicholson (née Hanlon)		Second Defendants

Advocate D. G. Le Sueur for the Plaintiff.

Advocate J. N. Heywood for the First Defendant.

judgment

the commissioner:

1.        This is an application by the plaintiff for the first defendant to exhibit before the Court its title (pour exhiber titre) to a piece of land which she says forms part of the garden to her property.

2.        The plaintiff owns Share 13 of the 42 Shares in the association known as Highfield Country Apartments Association ("the Association"), which is the first defendant to these proceedings, pursuant to a declaration of co-ownership ("the Declaration") registered before the Court on 18^th February, 2009, under to the provisions of the Loi (1991) sur la co-propriété des immeubles bâtis ("the 1991 Law").  It consists of a ground floor apartment and garden, which we will describe in more detail later. 

3.        By way of background, the developer of these apartments was Highfield Country Apartments Limited ("the Developer") owned by Mr Robert Beslièvre and his wife.  The Developer had acquired the property, then known as the Highfield Country Hotel, La Route d'Ebenezer, in the Parish of Trinity, in or around November 2007, with a view to its conversion and development into residential units for sale. 

4.        Work commenced in January or February 2008 and was beset not just by the financial climate following the banking crisis of 2008, but also by the financial difficulties of the building contractor, which eventually went bankrupt, and by a number of practical difficulties. 

5.        Each Share (a translation from the word "lot" used in the 1991 Law) comprises a private unit intended for the exclusive use of the owner and an interest in the common parts.  We are concerned with the private unit comprised within Share 13 and which bears the same number.  Unit 13 forms part of a number of adjoining private units numbered, going from west to east, 8 to 13 and Cottages 1 and 2, all of which have gardens to their north.

6.        This case is best understood by having the plans attached to the Declaration before you, together with knowledge of the site, but we will do our best to describe the position.

7.        The first plan produced by the Developer, dated 25^th January, 2007, showed a ground floor Unit 14, where there are now Cottages 1 and 2, with all of the ground floor units 8 to 14 having gardens to the north of approximately the same size and with steps leading from the gardens up a bank to a car park on the western side and a swimming pool on the eastern side.  In the case of Units 12 - 14, which are on the eastern side, there was a bike/general store and residents' store between the northern extremities of their gardens and the swimming pool.

8.        This was the plan which the plaintiff and her partner saw when they entered into a simple two page option agreement on 30^th May, 2008, for the purchase of Unit 13 for £285,000.  At that stage, it was not known whether the sale would proceed by way of share transfer or by flying freehold, and the agreement refers simply to Unit 13 without any description.  No plans were attached to the option agreement.

9.        When excavating the area to the north of Units 13 and 14, the Developer encountered what Mr Beslièvre described as a stream, but certainly a high water table, which necessitated building a 5 foot retaining wall against the bank for the full length of Units 13 and 14, together with associated drains, sump and pumps. 

10.      At the same time, the original intention of converting Unit 14 into a ground floor apartment (with an apartment above) proved impracticable due to the state of that part of the building and so the Developer decided to build two new cottages to the east of Unit 13, namely Cottages 1 and 2, the building regulations for which required larger gardens.  Unit 13's adjoining neighbour to the west is therefore Unit 12 and to the east Cottage 1.

11.      In order to enlarge the gardens to Cottages 1 and 2, the stores which had been shown on the plan between the gardens to the north of Units 13 - 14 and the swimming pool were removed from the plan, and a new store placed to the north of the gardens to Units 11 and 12.  The gardens of Units 11 and 12 were reduced in size to allow for a path between their gardens and the new store.

12.      The next plan, originally dated March 2008 but revised in January 2009, showed the gardens to Units 13 and Cottages 1 and 2 extending north to the swimming pool, over the area where the stores were originally intended to be, considerably enlarging the gardens of all three of them.  This plan was incorporated into the Declaration as Plan 42.

13.      At the time of the registration of the Declaration on the 18^th February, 2009, the garden landscaping work had not been completed.  Whilst the retaining wall which ran west to east to the north of Units 13 and Cottages 1 and 2 was in existence (although not yet back filled), the walls dividing their gardens on the western and eastern sides had not been completed.  That remained the position when the plaintiff purchased Unit 13 shortly after on 13^th March, 2009.  Her partner could not join in the purchase, as she had no housing qualifications, but took joint responsibility for the mortgage.  That contract merely referred to Unit 13 as described in the Declaration and had no plans attached to it.  It is the Declaration, therefore, that is the key document.

The Law

14.      Before turning to the Declaration, we would make these general observations about the 1991 Law: -

(i)        The 1991 Law enables immoveable property to be divided between several persons (referred to as "copropriétaires" or in translation "co-owners") by storeys or by parts of storeys (Article 2(1)).

(ii)       Each Share comprises a private unit and an interest in the common parts of the immoveable property and each constitutes a corpus fundi (Article 2(2)), defined as meaning a "corps de bien fonds" within the meaning of the Loi (1880) sur la propriété foncière, namely:-

"Un héritage formant un tout distinct et complet, susceptible d'être hypothéqué séparément des autres héritages du propriétaire, et qui doit être loti et vendu en cas de liquidation, ou soumis au dégrèvement, indépendamment des autres biens-fonds qui furent au cessionnaire".

In translation: - "A hereditament forming a distinct and complete whole, capable of being hypothecated separately from other hereditaments belonging to the owner, and which must be allotted and sold in the event of liquidation, or submitted to dégrèvement, independently of the other hereditaments which belonged to the bankrupt person."

(iii)      Each private unit is the exclusive property of the given co-owner ("copropriétaire déterminé") and the common parts of the property are the subject of an undivided ownership between the co-owners (Article 2(6)).

(iv)      The Declaration shall contain the description of how the ownership of the immoveable property has been divided and shall determine the "destination" of both the private units and the common parts, as well as the conditions of their enjoyment (Article 3(2)).

(v)       The co-owners together constitute an incorporated association whose objects shall be the maintenance of the immoveable property and the administration of the common parts (Article 5(1) and (3)).

(vi)      Whilst the Association may amend the Declaration (Article 5 (2)), it cannot impose upon an owner of a private unit any modification of the "destination" of his or her private unit or the mode of its enjoyment (Article 8(7)).  "Destination" is not defined and we were not made aware that it had any defined meaning under our customary law, but in translation it means the intended purpose or use of the private unit.  Consistent with that the Declaration, defines it in this way: -

"The "destination" of the Property is that the Apartments and Cottages shall be used only for private residential purpose and for uses generally ancillary thereto, the Parking Spaces for the parking of private motor vehicles (for the avoidance of doubt this excludes the parking of commercial vehicles, vans or lorries) and Common Parts for the purposes ancillary to the above."

The Declaration

15.      The Declaration first gives a description of the property as a whole, with its boundaries, servitudes and provenance.  The schedule then deals with the division of the property into Shares, clause 4 providing that the immoveable property is divided into 42 Shares relating to the apartments, the cottages, the parking spaces and the gardens.

16.      Private units are defined in clause 5 as "those areas of the Property being the Apartments, the Cottages, the Parking Spaces, the Stores and the gardens which are the subject of an exclusive and sole right of ownership and enjoyment by the various co-owners .... and all appurtenances ..."

17.      After defining the Common Parts, the Declaration then goes on to give a description of each of the Shares, the description in relation to Share 13 being in these terms:-

"Share 13         The Private Unit being the Apartment bearing the number 13 situate on the Ground Floor, consisting of a lounge, kitchen, bedroom, shower room, hallway and Garden (situate to the North of the Private Unit in the rear of the Buildings) as identified on Plans 13 and 42 hereto, Parking Space number 13 as identified on Plan 45 hereto and Store number 13 as identified on Plan 42 hereto."

The Declaration contains no other description of Share 13.

18.      Plan 13 is titled "Apartment and layout plan".  It shows the external walls and internal layout of the Unit giving the interior area as 50m2.  To the north the plan shows a shaded area depicting a garden surrounded by hedging.  There is nothing to show where the Unit is located within the property or its adjoining neighbours.  It gives the impression of being illustrative of a garden rather than anything more precise.

19.      Plan 42, on the other hand, which is headed "Proposed ground-floor plan", shows the ground floor and gardens of all of the private units/cottages on the property.  In particular it shows where Unit 13 is located within the property and its adjoining neighbours.  It shows the garden of Unit 13 extending all the way to the north until it meets the swimming pool area.  Its garden is co-extensive with the gardens of Cottages 1 and 2, which go beyond the retaining wall to the swimming pool.  The boundaries to the north, west and east of the garden to unit 13 are depicted as bushes as are the boundaries of Cottages 1 and 2.  There is no retaining wall shown in the garden of Unit 13, although one existed when the Declaration was registered.

The dispute

20.      The plaintiff says her garden extends beyond the retaining wall to the swimming pool to the north as shown by Plan 42.  The Association says her garden extends only to the retaining wall.  We will refer to the rectangular area of land between the retaining wall in the garden of Unit 13 and the swimming pool as "the Disputed Area".

Principles of construction

21.      The principles applicable to the construction of documents are well established and were summarised by the Court of Appeal in Parish of St Helier v Minister of Infrastructure [2017] JCA 027 at paragraph 12 in this way:-

"12     The Royal Court set out extensively the principles applicable to the construction of documents, primarily by reference to the decisions of this Court in Trilogy Management v YT Charitable Foundation (International) Ltd [2012] JA 152 and La Petite Croatie Ltd v Ledo [2009] JCA 221.  Those principles, which are well-known, may be stated as follows:

(1)       the aim is to establish the presumed intention of the makers of the document from the words used;

(2)       the words must be construed against the background of the surrounding circumstances or matrix of facts existing at the time of execution of the document:

(3)       the circumstances relevant and admissible for this purpose are those that must be taken to have been known to the makers of all parties to the document at the time, and include anything which would have affected the way in which the language of the document would have been understood by a reasonable man.

(4)       evidence of subjective intention, drafts, negotiations and other matters extrinsic to the document in question is inadmissible as an aid to construction, but may be admitted to resolve a latent ambiguity (that is to say) an ambiguity that only becomes apparent when otherwise clear words are related to the surrounding circumstances;

(5)       evidence of events subsequent to the making of the document is inadmissible as an aid to construing the original meaning of the document;

(6)       words must be read in the context of the document as a whole;

(7)       words should so far as possible be given their ordinary meaning; and if the language is unambiguous the Court must apply it unless the result is commercially absurd;

(8)       if the words used are ambiguous, in the sense of being capable of more than one construction, the court should adopt the construction that appears most likely to give effect to the commercial purpose of the agreement and to be consistent with business common sense; but there is a correlation between the degree of ambiguity and the persuasiveness of a common sense construction, so that the greater the ambiguity the more likely it is that the court will adopt a construction based on common sense, and vice versa."

Matrix of facts

22.      In addition to the background we have detailed above, it is not in dispute that as at the date of the Declaration the matrix of facts included the following:-

(i)        The Disputed Area contained a borehole used to serve the irrigation system for the gardens generally, and for the swimming pool.

(ii)       There are drains and services which run under the Disputed Area through into the garden of Cottage 1.  The electricity cables run from there to Cottages 1 and 2 and the drains to a sump in the garden of Cottage 2.

(iii)      The Disputed Area is some 5 ft higher than the ground level of Unit 13, so that anyone standing on it can look back directly into the windows of the apartment above Unit 13.

(iv)      There were no steps leading from the garden of Unit 13 up to the retaining wall to gain access to the Disputed Area, whereas Cottages 1 and 2 had steps that lead up to the area behind the retaining wall with access through to the swimming pool.

The plaintiff's title to the Disputed Area

23.      The plaintiff relies on Plan 42 as demonstrating clearly that the Disputed Area forms part of the garden to Unit 13.  Advocate Le Sueur, for the plaintiff, acknowledged that Plan 13 gave rise, arguably, to an ambiguity on the face of the two plans, in that the area of garden shown in Plan 13 is very roughly the same area of the garden up to the retaining wall, but in his view, Plan 13 was intended to show the internal layout of the Units, as its title suggests.  It was not intended to show the boundaries of the garden to the north, which Plan 42 does, very clearly.  To the extent that there is a patent ambiguity, it should be resolved in favour of the plaintiff.  He acknowledged that Plan 42 does not show the retaining wall, or indeed the borehole or services in the Disputed Area, but even if those had been shown, there was no reason why the boundary to the north should stop at the retaining wall.  The existence of the borehole and services does not preclude the land itself forming part of Unit 13 (the garden to Cottage 1 also having services beneath it), as they are all defined as coming within the "common parts" to which the Association would have access (clause 10(L) of the Declaration.)

24.      Furthermore, there was no reason why the garden to Unit 13 should not extend to the swimming pool in exactly the same way as the gardens of Cottages 1 and 2.

The Association's title to the Disputed Area

25.      The Association's case is that Plan 13 is the only plan which deals solely with Unit 13 and should be definitive.  It shows the garden being approximately the same size as the area of the garden up to the retaining wall.  Plan 42 is imprecise, both in its failure to show the retaining wall and in its depiction of the boundaries as bushes.  If the retaining wall had been shown, the lack of access to it would indicate that it was not intended to form part of the garden to Unit 13.  The only interpretation that made sense, argued Advocate Heywood for the Association, was that the retaining wall was the northern boundary of the garden to Unit 13.

26.      If the Court considered that neither Plan 13 nor Plan 42 was capable of being determinative of the boundaries of Unit 13, and indeed the other units, then there is a latent ambiguity in the Declaration.  The latent ambiguity, Advocate Heywood submitted, is that the Declaration is intended to establish the private units and the common areas, and appears to do so, but when one attempts to apply that to the site as it exists, it is impossible to determine with certainty the boundaries of the various units.  In such circumstances, the Court is entitled to consider extrinsic evidence of the subjective intention of the parties; see La Petite Croatie Limited v Ledo [2009] JCA 221.

27.      The Developer was the only party to the Declaration and the evidence of Mr Beslièvre was that it was not his intention that the Disputed Area should go with Unit 13.  That latent ambiguity extended, Advocate Heywood argued, to the plaintiff's contract of purchase, and would allow in evidence of her subjective intentions, which showed, he said, that she was not expecting to acquire the Disputed Area.

Decision

28.      The Court heard evidence from the plaintiff and her partner, from Mr Christopher James Marsh, the managing agent of the Association and its representative, Mr Anthony Paul Del Amo, a partner of Le Gallais & Luce, who drafted the Declaration and arranged for its registration before the Royal Court, Mr John Charles Nicholson, the owner of Cottage 1, and Mr Beslièvre.  To the extent that this comprised extrinsic evidence of subjective intentions, it was admitted de bene esse, but for the reasons set out below, it was not necessary for the Court to have regard to extrinsic evidence.

29.      The first plan, dated 25^th January, 2007, showed, as we have said, stores being built between the gardens of what were to be Units 12 - 14 and the swimming pool.  When it was decided to rebuild Unit 14 as two cottages, which required more amenity space, the stores were then moved westward and to the north of Units 11 and 12, as shown on Plan 42.  Plan 42 then shows the gardens to Unit 13 and Cottages 1 and 2 extending northwards to the swimming pool over the area which would have been occupied by the stores.  It would seem logical that with the removal of the stores they would be so extended.

30.      We agree with Advocate Le Sueur, for the Plaintiff, that Plan 13, as its title suggests, is intended to show the internal layout of the Unit and not the boundaries to and extent of the garden.  This, we concluded, would be consistent with the plans for the other units with garden areas, for example Units 8 and 9, where the garden areas depicted on those plans are clearly not the same as the garden areas shown on Plan 42.  It is therefore to Plan 42 that we need to look for that purpose.

31.       At the date of the registration of the Declaration before the Royal Court, the landscaping to the north of Unit 13 and Cottages 1 and 2 had not been completed, and it is the case that the bushes indicating the boundaries of the gardens to all three, as shown on Plan 42, did not exist on site.  It is also the case that Plan 42 did not show the retaining wall extending from the gardens of Cottages 1 and 2 through to the garden of Unit 13.

32.      However, the extent of the garden to Unit 13 is not ascertained from the plans alone.  The extent of a person's ownership of immoveable property is ascertained both by the description contained in the conveyance, in this case contained in the Declaration, and by application of that description to the site. 

33.      We have the benefit of photographs taken in January and February 2009, shortly prior to the Declaration being registered, which show the situation on the ground as it was then and as it would have been when the Declaration was registered.  Those photographs show that the retaining wall had been built across the gardens of both Unit 13 and Cottages 1 and 2, and they also show the new store that had been built to the north of Units 11 and 12.

34.      From Plan 42 (and indeed Plan 45 which is consistent with it), and from the site as it then was, there would have been no difficulty in ascertaining the position of the western and eastern boundaries of Unit 13 (and of Cottages 1 and 2).  Walls have now been built on those east and west boundaries, over which there is no dispute.

35.      The issue relates to the northern boundary of Unit 13.  Does it stop at the retaining wall, which is not shown on Plan 42, but was there on site, or does it continue north to the swimming pool, co-extensive with the adjoining gardens of Cottages 1 and 2?

36.      In our view, it is clear from a combination of Plan 42 and the situation on the ground at the time, that it is the latter which applies.  Anyone going on site with the Declaration in hand, and the plans attached to it, would have reached that conclusion.

37.      The existence of the retaining wall made no difference to the size of the gardens to Cottages 1 and 2 and equally, would make no difference to the size of the garden of Unit 13.  The absence of steps to gain access to the higher ground in Unit 13 is, in our view, neither here nor there - steps can be added later.  Services existed under both the Disputed Area and the garden of Cottage 1, and the existence of such services (and in the case of the Disputed Area, the borehole) presents no impediment to ownership of the land itself going with the Units/Cottages to the south.

38.      We conclude, therefore, both from Plan 42 and from the situation on the ground at the time that the Declaration was registered before the Court, that the Disputed Area formed part of the garden of Unit 13.  The northern boundary of the garden of Unit 13 extends, as shown on Plan 42, to the swimming pool area.  More precisely, the northern boundary is represented by a line drawn along the northern face of the store situated to the North of Units 11 and 12 eastwards until it intersects with a line drawn northwards from the centre of the wall forming the eastern boundary of Unit 13.

Latent ambiguity

39.      As the Court of Appeal said in La Petite Croatie Limited v Ledo, the Court can look to latent ambiguity as an exception to the rule that evidence of the parties' subjective intentions is inadmissible, but it is an exercise which should be approached with caution, because of the need to have regard to maintain the certainty and integrity of the Registry.  The evidence must in any event be probative (paragraph 19). 

40.      The Court does not accept that there is a latent ambiguity in the Declaration, when interpreted against the matrix of facts.  To the extent that there is an ambiguity over the size of the garden between Plan 13 and Plan 42, it should be resolved in favour of Plan 42, the only plan which was designed to show the size of the garden to Unit 13.  It also makes business common sense that moving the stores from the area between the gardens of Unit 13 and Cottages 1 and 2 and the swimming pool, would extend the gardens of all three northward over the area released.

41.      There is only one party to the Declaration, namely the Developer, and its intentions can only be gleaned from the evidence of its principal agent, Mr Beslièvre.  It is the case that when the issue of the Disputed Area arose later in the context of a possible acquisition by the plaintiff, he set out in a letter dated 24^th February, 2010, the reasons why he felt the plaintiff could not acquire the Disputed Area, but as to his intentions as the mind of the Developer at the time of the Declaration, he relied simply on his assertion as to his memory of what he intended.  The plans had been amended by the architects on his instructions and the revised Plan 42 prepared in January 2009 must have been examined by him; indeed, it states on it that it was based on information received "from the client, not surveyed".  Those plans were in turn sent to the Developer's lawyers for incorporation into the Declaration.  As set against this powerful documentary evidence, we did not find his oral testimony as to his memory of what he intended at the time the Declaration was registered probative.

42.      Two further issues arise.

Encroachment by Cottage 1

43.      After the registration of the Declaration, a small part of the eastern end of the Disputed Area was incorporated into the garden of Cottage 1.  It necessarily follows from our finding that this also forms part of the garden of Unit 13.

Amendments to Declaration

44.      The Association purported to amend Plan 42, restricting the garden of Unit 13 to the area to the south of the retaining wall and placing the Disputed Area within the common parts of the property and so within the undivided ownership of the co-owners as a whole.  Those amendments were registered before the Royal Court on 25^th May, 2012, and 19^th April, 2013.  The Association accepts that if the Disputed Area forms part of the garden of Unit 13, then it cannot be removed from that garden by a decision of the Association, both as a matter of principle and because its objects are limited to the maintenance of the property and the administration of the common parts.  We will therefore declare those amendments to be void to the extent that they purport to do so.

Authorities

Loi (1991) sur la co-propriété des immeubles bâtis.

Parish of St Helier v Minister of Infrastructure [2017] JCA 027.

La Petite Croatie Limited v Ledo [2009] JCA 221.