Property - application by the Plaintiffs seeking an order en licitation
Before : |
A. R. Binnington Esq., Commissioner, and Jurats Averty and Cornish |
Between |
Mary Rose Burmingham née Le Hegarat |
First Plaintiff |
|
Christine Joan Coen née Le Hegarat |
Second Plaintiff |
|
Dacia Diggle née Le Hegarat |
Third Plaintiff |
And |
Edward Le Hegarat |
Defendant |
Advocate N. S. H. Benest for the Plaintiffs.
Advocate J. J. McCormick for the Defendant.
judgment
the COMMISSIONER:
1. On 15 October 1971, Edward Arthur Le Hegarat ("Edward Arthur") and his wife Gladys, the parents of the Plaintiffs and the Defendant, purchased jointly and for the survivor, a farmstead and land collectively known as La Presse, La Rue de la Presse, St Peter ("La Presse"). Prior to that date they had been tenant farmers at a number of different farms over the years.
2. There was a lot of work required to make La Presse habitable but following renovation and upgrading works to La Presse, the family moved in in 1972 and Edward Arthur and Gladys worked the farm until their retirement in 1989. To varying degrees, all four children worked for their parents on their farms when they were not at school, whether during the period that they were tenant farmers and/or at La Presse. They were paid for their time working the farms. For convenience, and without wishing to be disrespectful, we shall refer to the children by their first names in this judgment.
3. On 25 October 1979, Edward Arthur and Gladys executed reciprocal wills of real and personal estate in which they left their respective estates to each other, and in the event of the predecease of the other, to their children in equal shares with the further proviso that should any of their children have predeceased them, then that share of their estate would be divided equally between any surviving children of their deceased child (i.e. their grandchildren). As this was before the reforms effected by the Wills and Succession (Jersey) Law 1993 this had the effect of ensuring that all four children would inherit La Presse on the death of the survivor of them rather than any one child inheriting it alone.
4. Mary lived at La Presse from 1971 to 1993 when she got married. Whilst living at La Presse she paid her parents £5 per week when she was not working on the farm and, as she started earning more money, her board and lodgings increased. In 1993, she was paying her parents £100 a month.
5. Christine moved out of La Presse in 1978. She was gifted a plot of land by her parents to assist with the construction of her home. She stopped working on the farm in 1973 when Edward took her place.
6. Dacia worked full time at La Presse from 1972 to 1979. During this period, she was paid and received board and lodgings. In 1979, she stopped working full time at La Presse but continued to live in the cottage on the property with her husband. During this period, she paid her parents £12 a week in rent. In 1983, she and her husband moved out of La Presse as they had the opportunity to purchase a plot of land in St Ouen and build their own home.
7. Edward commenced working full-time at La Presse in 1973 when he left school at the age of 15, alongside his parents and his sister Dacia. In his evidence in chief, he recalled that he and Dacia were each paid a weekly salary in return for their work at the Property and that when he was 29 it was £29.00 per week, which, according to Mary's evidence, was in line with Jersey Farmers Union rates at the time. He has never married and has lived at the property ever since.
8. In her first affidavit, Mary recalled that "Our parents always treated us equally. As children, we each had a personal mug, and every night, before bed, our mother would make us a hot drink - Ovaltine for Christine and Dacia, and hot chocolate for Edward and me. She would divide a bar of chocolate equally among us cutting it down the middle lengthways and breadthways thereby ensuring we each had the same amount of chocolate (a corner each) to prevent arguments. She did this every night. As we got older, our mother would take each one of us to town to buy Christmas presents for each other, with the same budget for each. Equality was a constant principle in our upbringing".
9. Edward said that in 1988, when his father was 64 and approaching retirement age, his father and mother asked him if he wished to take over the operation of the farm from them. He replied in the affirmative and it was agreed that he would take over the farm the following year, in 1989.
10. Edward said that in response to his acceptance to take over the farm, his parents informed him that they would ensure that La Presse would be devised to him in the event of their deaths, adding that this was the first time that his parents had assured him that he would inherit La Presse.
11. In return for being able to operate his farming business at the Property, he said that it was agreed that he would pay his parents an annual rent of approximately £5,000. That annual rental was never increased and continued to be paid until 2016.
12. He said that in 1989 he purchased stock and farm equipment from his parents to operate the farm for a price of £10,000 and purchased a further portion of stock and farm equipment from them for £10,000 in July 1991. In his opinion, the £20,000 total which he paid to purchase the stock and farm equipment from his parents was approximately £5,000 over the equipment's market value at the time.
13. Edward stated in cross-examination that his parents told him in 2005 that they would change their wills to reflect their promise that he would inherit La Presse but as his mother was unwell, he suggested that they wait until summer of the following year. Gladys passed away on 27 March 2006 and a Grant of Probate was made in respect of her will.
14. In 2016, Edward Arthur fell and sustained a broken hip, following which he had become so unwell that he required full time care. Edward stated that he took on the role of full time carer to his father, reduced his work on the farm and cleared out one of the rooms on the ground floor of the Property to enable his father to live downstairs. He said that he received a carer's allowance from the States of Jersey between 2017 and 2019. Carers would visit the Property twice daily to wash his father.
15. Edward Arthur passed away on 23 January 2019 without having changed his will.
16. Edward and Christine subsequently attended the offices of Ogier, their parents' lawyers, to register the Will, which Christine said made sense as Edward was the signatory at the bank. Edward had asked her to attend the meeting with him for support. The will of immovable estate, leaving La Presse to the four children in equal shares, was registered in the Public Registry on 27 February 2019.
17. The four siblings thereafter began negotiations around the potential division of La Presse with a view to a contrat de partage being passed. Mary instructed Benest & Syvret to represent her in those negotiations. The siblings decided to seek professional advice from MS Planning as to the potential division of La Presse with a view to each of them being able to retain a portion of it and develop a unit of accommodation thereon. Simultaneously, Jersey Water was bringing a mains water supply up La Rue de la Presse and Dacia, Edward and Mary all paid for connections to be established for the benefit of what they anticipated would become their respective plots.
18. In or about May 2021, negotiations regarding a potential division of La Presse broke down after Edward told his sisters that he did not want to have strangers living next door to him once La Presse was developed. Thereafter, the Plaintiffs resolved that La Presse should be sold so that they could each take the benefit of their respective inheritance. Edward refused to participate in a sale and continues to do so.
19. On 21 November 2022, the Plaintiffs issued an Order of Justice seeking an order en licitation that La Presse be sold at public auction in order to bring an end to the indivision.
20. On 3 March 2023, Edward filed an Answer and Counterclaim, stating in essence that:
(i) his father had promised him La Presse;
(ii) that he had acted in reliance upon the promise and this to his detriment;
(iii) that it would be inequitable and unconscionable for his sisters to now benefit from this state of affairs;
(iv) that, in the alternative, if his sisters were to be permitted to take their share of La Presse it would constitute an unjust enrichment in their hands.
21. Edward now seeks the transfer of La Presse to him for a nil consideration or, in the alternative, that the Plaintiffs be ordered to account to him in damages.
22. The law relating to actions en licitation is well settled and is based on the Jersey customary law maxim "nul n'est tenu de rester dans l'indivision".
23. In Ritson v Slous [1973] JJ 2341 the Royal Court (Le Masurier, Bailiff) stated "We are satisfied that it is the incontestable right of the owner of an undivided share of any real estate to enforce the sale of such real estate, and we know of no rule of law which prevents this Court from divesting a person of his property when the justice of a case dictates that it be done".
24. That decision further confirmed that where "licitation" is invoked to put an end to indivision, the land in question is put up for sale at public auction. Each co-owner is free to bid at any such auction and have the opportunity to become the land's sole owner.
25. In a subsequent decision of the Court of Appeal, Haas v Duquemin and Duquemin [2002] JLR 27, the Court held that pending the cessation of the indivision, each of the co-owners has the right to make use of the whole of the property.
26. What is less settled is the application of the principles of what has been variously described as promissory, proprietary or equitable estoppel, which for convenience Advocate Benest referred to as "the equitable issue".
27. The Defendant relies upon the application of the remedy of proprietary estoppel, not merely to resist the licitation procedure but to claim ownership of La Presse in its entirety rather than as one of four co-heirs.
28. As the name suggests, proprietary estoppel concerns promises to confer interests in property, usually land. Perhaps unsurprisingly many of the legal authorities concern farms, as is the case here.
29. In Maçon and Maçon v Queree [2001] JLR 80, the Royal Court (Page, Commissioner), cited a passage from the judgment of Robert Walker LJ in the English Court of Appeal decision in Gillet v Holt [2000] 2 All ER at 302 where, using a formulation that had been applied in a number of English court decisions, he described the remedy in the following terms:
"The doctrine can be expressed in its broadest form in the following terms: "... [W]here one person, A, has acted to his detriment on the faith of a belief, which was known to and encouraged by another person, B, that he either has or is going to be given a right in or over B's property, B cannot insist on his strict legal rights if to do so would be inconsistent with A's belief"."
30. Commissioner Page went on to refer to a further passage from Gillet v Holt where Walker LJ said:
"(a) Although it is customary and convenient to marshal the circumstances of any particular case under the classic headings of assurance, reliance and detriment, the doctrine cannot be treated as being subdivided into three or four watertight compartments.
(b) The fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine. In the end the court must look at the matter in the round.
(c) Even an equivocal representation can give rise to a proprietary estoppel
(d) Detriment is not a narrow or technical concept. It need not consist of the expenditure of money or other quantifiable financial detriment, so long as it is substantial.
(e) There must be sufficient causal link between the assurance relied on and the detriment asserted. The issue of detriment must be judged at the moment when the person who has given the assurance seeks to go back on it. Whether the detriment is sufficiently substantial is to be tested by whether it would be unjust or inequitable to allow the assurance to be disregarded - that is, again, the essential test of unconscionability."
31. However, the Commissioner went on to say that the extent to which the doctrine as a whole, or its constituent parts, as advanced by the English courts, were either already part of or should be part of Jersey law, had yet to be thoroughly tested by the Jersey courts.
32. The principle of proprietary estoppel forming part of Jersey law was reiterated in Cannon v Nicol [2006] JLR 299 and the Royal Court confirmed its view that Maçon v Queree had been correctly decided and recited the formulation of the test on estoppel as set out by Commissioner Page in Maçon v Queree, adopted from Gillet v Holt.
33. There has been some criticism of the application of the doctrine in Jersey, most notably in the decision of the Royal Court (W J Bailhache, Deputy Bailiff) in Flynn v Reid [2012] (1) JLR 370 in which the Court reasoned that:
"It was an essential component of proprietary estoppel under English law that the party asserting the benefit of the estoppel should have acted in the belief either that he already owned, or that he would obtain, a sufficient interest in the defendant's property to justify expenditure that had been incurred. As Jersey law did not permit a theoretical division between the legal ownership of immovable property and its beneficial ownership, if the effect of the doctrine of proprietary estoppel was to create an equitable interest in immovable property which was to exist in parallel with legal interest, it did not form part of Jersey law."
34. As Lord Walker pointed out in Gillet v Holt, the fundamental purpose of the doctrine of proprietary estoppel is the prevention of unconscionable conduct. That is, however, not to say that the Court has the power to hold a promisor to an otherwise unenforceable promise merely because the Court regards it as unfair to allow him to go back on it. The remedy has to be applied in accordance with recognised principles. This has led to the formulation of the doctrine in the terms set out in Gillet v Holt and approved by the Royal Court in Maçon v Queree.
35. Once the necessary elements are made out, the Court has a wide discretion as to remedy and it may well be that at that stage the remedies available to a Jersey Court will be fewer than those available to an English Court by reason of the rules of Jersey law applicable to immovable property. One obvious example is the inability of a Jersey Court to make an order for specific performance of an agreement to create an interest in land, as in Felard Investments Limited v Church of Our Lady, Queen of the Universe (Trustees) [1979] J.J. 19 or, as in Flynn v Reid, the recognition of an equitable interest in immovable property in parallel to the legal interest. The absence of those particular remedies does not, in our view, prevent the Royal Court recognising the doctrine of proprietary estoppel and, where appropriate, applying a remedy for the relevant unconscionable behaviour which does not offend against established Jersey law principles.
36. The first question to be asked is "Was there any promise or assurance made to Edward that he would inherit La Presse to the exclusion of his sisters?" (the "Promise Issue").
37. Edward stated in evidence that the promise was first made in 1988, when he agreed to take over the operation of the farm from his parents the following year, in 1989. He said that on that occasion his parents informed him that they would ensure that La Presse would be devised to him in the event of their deaths.
38. Edward stated that the promise was repeated on three subsequent occasions:
(i) He said that in approximately 1995, he became aware that three new build properties were being marketed for sale on land adjacent to one of the fields at La Presse, for a purchase price between £85,000 and £90,000. As he was in the fortunate position of being able to purchase one of the three new properties without third party financing, he suggested doing so to his mother and father in case they ever sold La Presse, which would result in him being homeless and unable to run the farm. However, he said that his parents dissuaded him from purchasing one of the properties as an investment on the basis that it was unnecessary since La Presse would be his when they passed away. He said that they told him that it would be sensible for him to maintain his finances in the event that further capital would be required to operate the farm when he inherited it.
(ii) In 2005, when his parents told him that they needed to change their wills, but he suggested postponing the visit to their lawyer until the following summer when the weather would be better, given his mother's poor state of health.
(iii) In 2018, towards the end of his father's life, he said that his father repeated the promise, saying that he needed to get his will changed because "the house is yours" and that he repeated this whilst in hospital shortly before he died. In evidence, he said that this was in the hearing of Edward's nephew David, although there was no evidence before us of David having heard this.
39. There was no evidence that the promise, if made, was made in the hearing of anyone other than Edward.
40. The only person who appears to have had anything approaching a discussion with Edward Arthur and Gladys about the future of La Presse was Christine. She said, in her second affidavit, that in the years leading up to 1979 - when the will was executed - her parents sometimes went on holiday on coach trips. She said that she believed that they executed their wills to ensure that if anything were to happen to them whilst travelling, La Presse would be divided equally amongst their children. Otherwise, under the inheritance laws at that time, La Presse would have been left entirely to Edward, who was only twenty-one at the time. She said that she had further discussions with her mother regarding the division of La Presse, in which her mother indicated that although she and Edward Arthur had thought about leaving Edward La Presse for his lifetime, they had decided not to proceed with that option due to concerns that Edward might marry, which could affect the siblings' inheritance or that of their children. Christine said that her mother always thought ahead and it was never Christine's understanding that Edward was entitled to inherit La Presse.
41. In considering what further evidence there might be that a promise in the terms suggested by Edward was made, there are a number of matters that tend to indicate that it was not.
42. First, despite the promise allegedly having been made in 1988, neither Edward Arthur nor Gladys appear to have made any attempt to change their wills, in Gladys's case for a period of eighteen years, and in the case of Edward Arthur for a period of thirty-one years. This is despite the fact that agreed extracts from the Public Registry show that their lawyers met with them to witness powers of attorney in respect of various land transactions on a number of occasions. On each occasion it would have been a simple matter for them to raise with their lawyer any desire to alter their wills but it would seem that they did not.
43. In addition, following his father's death, Edward did not conduct himself as might be expected of someone who regarded themselves as having been unjustly deprived of a promised inheritance. As we have already noted, Edward went with Christine to the family lawyers, Ogier, to register their father's will. Edward said in evidence that until he saw the will that day, he did not know what was in it. Notwithstanding that the will left La Presse to all four siblings, and was therefore inconsistent with the alleged promise, it would appear that Edward proceeded with the registration of the will despite the inconsistency. When this was put to Edward in cross-examination, he suggested that he registered the will on the basis that he wanted to "sort out" his father's affairs and to ensure that bills could be paid, although Advocate Benest pointed out to him that that was the function of the will of personalty and not that of the will of immovable estate.
44. There was, however, some evidence, in the nature of hearsay, that Edward visited another law firm, Carey Olsen, in or about March 2019 in relation to the will. An email dated 21 March 2019 was produced to us on behalf of Edward. The email was from Gill Morgan, a "Senior Wills & Probate Administrator" at Carey Olsen, addressed to Advocate Keith Dixon of the same firm.
45. The email read as follows:
"Meeting on 1 April - this is the matter I mentioned to you recently. 4 children, 3 daughters and a son of a farming family - the Le Hegarats of St Peter. Father has died - aged 94, mother died a couple of years ago, Will made with Ogier back in 1970s I think, joint real and personal estate. Edward is the son, always lived at the farm, was prevented from buying a property of his own in the 1980s because his parents always maintained he would inherit the farm so would not need a separate place to live. The farm consists of 60 vergees of land as well. Christine Coen is his sister. All three sisters own their own property - Christine said it was known by all of them that Edward would get the farm. The Will leaves all to 4 of them equally. Other sisters are Dacia ? and Mary Le Hegarat (now a States Deputy). Edward and Christine would like to talk to us about the options - probate has been/is being taken out by Ogier who had the Will, but neither of them have ever been clients of Ogier in the past, whereas they know me. I talked through the options with Christine, she is supportive of Edward and wants to ensure he does inherit the farm. The farm has never been modernised, no running water or electricity I think she said. They are aware that making a claim through the court will be costly if they decide to proceed. I have not seen any paperwork, but she said that her two sisters are starting to insist it all goes equally."
46. In his evidence in chief, Edward said that he discussed the fact that he had been promised La Presse with Christine who, he said, encouraged him to obtain legal advice on the matter "as she too was shocked that the Property had not been devised to me". He said that in March 2019, Christine contacted a friend of hers who was then working in the probate division of Carey Olsen. He said that on 1 April 2019, "with the support and encouragement of Christine", he attended a meeting at Carey Olsen's offices and met with Advocate Keith Dixon. He said that Christine accompanied him to this meeting in support of his position. He went on to say that it was following that meeting that he made the decision to challenge the relevant clause of his father's will although, as we shall note shortly, he did little, if anything, to progress that challenge for some considerable time.
47. Christine's evidence in relation to the email and the alleged meeting was somewhat different. She said that many of the statements contained in the email, including that the property had no electricity or running water, were "fundamentally untrue" and they did not accurately reflect the events. In particular, she said that she did not attend a meeting with Advocate Dixon and had never communicated with him.
48. Christine went on to say that Edward told her that he had sought legal advice from Ogier regarding an alleged promise of La Presse and that Ogier apparently advised him that they did not believe he had a viable case. He said that as he "kept going on at me about this" she contacted Gill Morgan on Edward's behalf, knowing that she worked at a law firm. She said that she did not know that Gill had subsequently contacted Advocate Dixon.
49. It appears that Ms Morgan was reluctant to give evidence, and she was not called by Edward to support what was said in the email. In the circumstances, we place little weight upon its contents other than it suggests that Edward may have taken legal advice at that time.
50. Far from asserting his claim, Edward appears to have made representations to third parties that La Presse was now owned by the four siblings. Thus, in June 2019, Jersey Mutual, the insurers of La Presse, responded to Edward's notification of the death of his father, asking him to confirm the ownership of the property. He responded by giving them the names of all four siblings and each sibling signed the proposal form as legal owner.
51. Furthermore, some five months after the registration of his father's will, on 10 July 2019, Edward executed a will of immovable estate in which he left the whole of his Jersey Immovable Estate to Christine stating that "for the avoidance of doubt" this included his "quarter share of the Jersey Immovable Estate (both land and buildings) left to me by my late father Edward Arthur Le Hegarat of La Presse St Peter Jersey". We find it curious that no mention was made in that will of the possibility of Edward owning more than a quarter share.
52. Instead of pursuing his claim to ownership of La Presse as one might expect, Edward began to negotiate with his siblings with a view to a partage of the property that would enable each sibling to take a part of the property for themselves. There was no suggestion that they were doing anything other than dividing up a property that they owned jointly.
53. A planning consultancy firm, MS Planning Limited, was engaged to come up with a scheme for the division of the property and each of the siblings contributed to their costs. Edward and Christine showed Mr Stein of MS Planning Limited around the property. In addition, Edward, Mary and Dacia contributed to the costs of Jersey Water bringing a mains water supply to the parts of La Presse that they were proposing to take as their share. Dacia exhibited to her affidavit a discussion paper entitled "Share or Sell", dated 9th May 2019, which she had sent to her siblings during the course of those discussions. From the document it is clear that, as far as she was concerned, the discussions were proceeding on the basis that the siblings were co-owners. Indeed, she notes that Edward's objection to a proposal that he remain living in the main house and his sisters develop the outbuildings as dwelling units was rejected by him on the basis that he had a fear that strangers might come to occupy the new units. It is telling that, if he regarded himself as the sole owner, he did not simply object on the basis that the entire property was his.
54. A week after Dacia produced her "Share or Sell" discussion paper, Mary's lawyer, Philip Syvret, wrote to Mary's three siblings noting that they were joint owners of La Presse and suggesting that they meet with him to discuss the future of the property. Edward continued thereafter to engage in the discussions on the basis of co-ownership.
55. On 6 March 2020, Mr Syvret wrote to the parties pointing out that a year and a day had now elapsed from the date of registration of the will and suggesting that a meeting be arranged with him, to be attended by all the siblings, with a view to discussing options in relation to the property. When cross-examined Edward was asked by Advocate Benest why he had taken no steps within the year and a day to challenge the will, to which he replied "because it would make me look like I was disrespecting my mother".
56. In August 2020, prior to a visit by Mr Syvret to the property, Christine emailed Mr Syvret to say that "Myself & my two sons have agreed that Edward with (sic) have my share for his lifetime". Christine said that at that stage she had been considering arrangements for the division of La Presse which might enable Edward to remain in the main house during his lifetime.
57. On 2 October 2020, Mr Syvret wrote to the siblings saying that MS Planning Limited had produced a scheme for division of the property and stated "I have in mind that it would be appropriate to proceed with an in-principle Planning application to see whether the division envisaged meets favour with the Planning Minister. Only if that is acceptable, we then proceed to a valuation of the various component parts. That will then lead to a discussion as to adjustments in respect of the value to be received by each party. Once those discussions have been concluded we would then be able to proceed to a formal contract of division before the Royal Court. An issue which flows from that is the funding of the Application and the related architectural and survey work".
58. Christine's position of allowing Edward to enjoy the farmhouse at La Presse for his lifetime subsequently changed when Edward refused to allow her to store some building cladding at La Presse. Tensions further increased between Dacia and Edward when Edward refused to allow Dacia to store her motorhome under cover at La Presse.
59. It is clear from photographs that we were shown of the property that the buildings are in a poor state of repair and are deteriorating.
60. In her evidence in chief, Mary said that in October 2023, following Storm Ciaran, she visited La Presse after Iearning that the roof was damaged. She said that the roof had been deteriorating prior to her father's death, and despite his repeated requests to Edward to fix it, Edward never got around to it. Storm Ciaran caused further damage, so she had gone to the property to address the situation and ensure that the roof would be repaired to prevent any potential injuries or further damage. She said that she had had recent correspondence with Jersey Mutual who had advised that they were waiting for an estimate of the damage caused to the property. She went on to say that on 23 June 2024, she visited Edward at La Presse to discuss this matter, and he confirmed that no estimate had yet been obtained.
61. When it was put to Edward in cross-examination that, notwithstanding his claim to ownership he appeared not to have invested any money in repairs his response was "I didn't maintain the farm, it's not my farm to maintain".
62. The discussions between the siblings as to division of the property ultimately floundered and Mary, Dacia and Christine decided that they had no option but to bring the present licitation proceedings.
63. The next question is, if the promise was made, did Edward rely upon that promise and to what extent?
64. Although reliance is a further matter that must be proved in order to found a proprietary estoppel, acts of reliance might also assist the court in corroborating the assertion that a promise was made when the only evidence of the promise is the word of the promisee.
65. In his Answer and Counterclaim Edward pleaded a number of actions that he took in reliance upon the promise. The acts were:
(i) The purchase, from on or about 1990, of stock and farm equipment to operate the farm from his parents for a price of £20,000.
(ii) Paying his parents an annual rent of £5,000 per annum.
(iii) From time to time purchasing stock and equipment for the operation of the farm.
(iv) Remaining living at La Presse and operating the farm ever since.
(v) Not purchasing another property to live in as his home.
66. We do not find any of these matters support the existence of the promise nor do they appear to be acts carried out in reliance upon it.
67. In relation to the acts referred to in i) to iv), in 1989, as we have already noted, Edward took over the farming business from his father and his status changed from that of employee to tenant farmer. The payment of rent and purchase of farming stock equipment are, in our view, all referable to that change of status and are acts that one would expect of a tenant farmer on taking over a farming business rather than acts of reliance upon a promise that he would inherit La Presse.
68. In relation to iv), namely Edward continuing to live at La Presse, he was fortunate that board and lodging was in effect included in the rent of £5,000 that he was paying for the farm, a rent which it would appear remained unchanged from 1990 onwards.
69. In relation to v), the alleged lost opportunity to purchase a home for himself, although Edward said that he was dissuaded by his parents on the basis that given the promise that he would inherit La Presse he had no need for a home of his own, he also said in evidence that a difficulty for him was that his mother disapproved of people buying a property to rent out. As Edward was provided with board and lodging at La Presse it could equally be said that there was little incentive for him to move out.
70. In relation to the promise issue, we do not find that a promise was made to Edward by his parents or, after his mother's death, his father, in the terms suggested by him. Put another way, we do not find that Edward had a belief, which was known to and encouraged by either of his parents, that he either had or was going to be given a right in or over La Presse.
71. If we were wrong in that finding then, in relation to the reliance issue, we do not find that Edward relied upon or acted to his detriment on the faith of such a belief.
72. Edward pleaded in his Counterclaim, in the alternative, that "in receiving the devise of the Property in common with the Defendant, the Plaintiffs have been unjustly enriched at his expense and it would be unjust for them to retain their interest in the Property".
73. In Flynn v Reid (supra) the Royal Court found that whilst there was "slender authority" in relation to the application of the doctrine of unjust enrichment under Jersey law the doctrine was not wholly unknown, albeit that its limits had not been judicially defined. In the context of that particular case, which concerned a property owned and subsequently sold by one cohabitee but in respect of which the other cohabitee had made a financial and personal contribution, the Court found that the defendant had been unjustly enriched at the expense of the plaintiff and ordered the defendant to pay to the plaintiff a proportion of the proceeds of sale.
74. In the present case, given our findings in relation to the promise and reliance issues, we see no basis for an assertion that the Plaintiffs have been unjustly enriched at the expense of the defendant.
75. In light of the above we find that the "Property", as described in the Order of Justice, is jointly owned by the Plaintiffs and the Defendant as owners in common "en indivis". Given Edward's refusal to cooperate in a sale or partage of the Property, applying the maxim "nul n'est tenu de rester dans l'indivision", the appropriate remedy is to order the sale en licitation, that is, by public auction, and we so order.
76. In the event the Defendant refuses or neglects to give effect to the Order of Court directing the sale of the Property or refuses to pass contract of sale of the Property within two calendar months of the sale of the Property by auction, we order that the contract of sale of the Property shall be executed by the Viscount or by such other person as the Court may appoint to give and effect a transfer of all and any interest the Defendant may have in the Property.
77. We recognise that a sale by public auction may result in a less favourable sale price than a private sale. We also recognise that Edward will require time to find himself alternative accommodation. We therefore order that the sale by public auction take place no earlier than nine months and no later than ten months from the handing down of this judgment. In the meantime, it is open to the co-owners to negotiate a private sale of the property or to reach an agreement as to its partage. However, in the event that neither can be achieved, the sale en licitation will proceed.
Authorities
Wills and Succession (Jersey) Law 1993.
Ritson v Slous [1973] JJ 2341.
Haas v Duquemin and Duquemin [2002] JLR 27
Maçon and Maçon v Queree [2001] JLR 80.
Gillet v Holt [2000] 2 All ER.
Cannon v Nicol [2006] JLR 299.
Flynn v Reid [2012] (1) JLR 370
Felard Investments Limited v Church of Our Lady, Queen of the Universe (Trustees) [1979] J.J. 19