Jersey Unreported Judgments

Summons seeking confirmation of the tenure of the real property, subject to dégrèvement of Caroline Powell

[2020]JRC246A

Royal Court

(Samedi)

27 November 2020

IN THE MATTER OF A REPRESENTATION BOUGHT BY ACORN FINANCE

AND IN THE MATTER OF THE DEGREVEMENT OF THE REALTY OF CAROLINE BEVERLEY ELIZABETH POWELL, NÉE CHAMBERS

Advocate O. J. P. Passmore for the Attournés.

Advocate J. J. McCormick for the Tennant.

EX TEMPORE judgment

the deputy bailiff:

1.        Today the Court has been convened for the purpose of considering the summons dated 6^th August, 2020, seeking confirmation of the tenure of the real property, subject to dégrèvement of Caroline Powell, as detailed in the Act of the Deputy Judicial Greffier dated the 26^th June 2018.  The dégrèvement took place pursuant to the Loi (1880) sur le proprieté foncière ("the Law").  

2.        Under Article 96 of the Law, in translation;

"the attourné shall without delay summon the tenant to appear before the Royal Court in term or in vacation to witness confirmation of the tenancy and the Court by its Act confirming the tenancy shall then judge to the tenant the ownership of the property comprising the tenancy and shall authorise the Viscount to put the said tenant in possession thereof and the attourné shall cause the said Act to be registered in the Public Registry."

Today Advocate Passmore on behalf of the attourné has explained to the Court's satisfaction the reason for the delay between June 2018 and today.

3.        In respect of the position of the Court today, the Court notes the very limited discretion of the Court at this stage of the proceedings, having regard to in particular the decision of the Privy Council in Eves & Hambros Bank [1995] JLR 344, when Lord Hoffman, delivering the judgment of the board said that:

"In the Barker case, the Court of Appeal left open the question of whether the dégrèvement became irrevocable when a creditor accepted tenancy of the property under art. 95 or when the tenancy was confirmed under art. 96.  Their Lordships consider, however, that the language of arts. 95 and 96 makes it clear that the acceptance of the tenancy by the creditor confers legal rights upon the parties to the dégrèvement.  The creditor accepting the tenancy becomes entitled to the property, the creditors in priority to him become entitled to be paid and the security interests of the other creditors are annulled.  Provided that the requirements of the dégrèvement have been satisfied, the court is obliged under art. 96 to confirm the tenancy.  The order of the court and its registration operate only as a conveyance to complete a transaction which, as a matter of contract, became binding at the earlier stage." 

Accordingly, as I have said, the Court's role today is limited and the obligation placed upon the Court is to confirm the tenancy.  

4.        With that in mind we turn to the draft order which we make in the following terms:-

"David John Sheppard, as assignee of Stephen Hill trading as Hillbury Collection Services, as assignee of James Gray, trading as James Gray Electrics (hereinafter called "Mr Sheppard") on the hypothec resulting from an Act of the Petty Debts Court dated 5^th February 2013, was registered on 27 January 2015, at the Public Registry of this Island, by which Caroline Beverley Elizabeth Powell, née Chambers was condemned to pay the capital sum of two thousand two hundred and thirteen pounds and sixty pence, sterling, declared that he accepted the tenancy following the discumberment (a déclaré se porter tenante après dégrèvement) of the immovable property of Mrs Powell forming a single corpus fundi,"  namely:-

I do not propose to read out the description of the corpus fundi.

5.        Today, Mr Sheppard and his wife Kathleen Margaret Sheppard, née Clarke ("Mrs Sheppard") appeared by Counsel in order to jointly take the tenancy of the said immovable property by way of subrogation and the Court made the following orders:-

(i)        the record of the Deputy Judicial Greffier dated 26^th June 2018 (Record du teneure) is confirmed;

(ii)       by Act confirming the tenancy the Court adjudges to Mr & Mrs Shepperd the joint ownership of the property comprising the tenancy;

(iii)      the Court authorises the Viscount to put the said tenant in possession of the said property;

(iv)      the Court orders the attourné to cause this Act to be registered in the Public Registry; and

(v)       noting that Mrs Powell continues to reside in the property, the Court orders that she vacates the property by the 31^st January, 2021.

Authorities

Loi (1880) sur le proprieté foncière.

Eves & Hambros Bank [1995] JLR 344.