Guernsey servitudes and English easements: a brief comparison

The jurisdiction of the Bailiwick of Guernsey is comprised of three separate legal systems, namely the laws of Guernsey, the laws of Sark and the laws of Alderney.  Whilst there are other smaller islands within the Bailiwick, these are not treated individually and will fall under the relevant laws of the Island to which they are most closely located. We are concerned in this note with the law governing servitudes in Guernsey and how this relates to the broadly equivalent English easement.

Background and context

Although less than 180 miles from London, Guernsey is in some respects, a world apart from England and Wales in its legal context. Although influenced by English Common Law, the Royal Court of Guernsey also looks to other Commonwealth jurisdictions and on occasion to French law for solutions when none may currently exist. Historically, the Bailiwick can trace its legal roots back to the early 10th century and the Norman state. Norman customary law is a cornerstone of the local legal system, and particularly so in the context of real estate, even to this day.

Customary law is in essence an unwritten law introduced by usage, tacitly accepted and observed by those who voluntarily submit to it, and which over an extended period assumes the force of law[1]. As time has passed, various commentators have committed to paper what the relevant customary law was at the time, thereby providing us with a rich and informative reference source for historical research purposes.

In 2023, Guernsey has only a legislative handful of property law related controls, unlike the position in England and Wales with vast numbers of property statutes since the groundbreaking 1925 era.

Servitudes: réelles and personnelles

Servitudes have been the subject of much academic treatment over the centuries[2]. The current French Code Civil states at Article 637 that a servitude is a charge imposed on an interest in land for the use and utility of an interest in land belonging to another owner. This definition is equally applicable in Guernsey. As one may therefore expect, the operation of a servitude requires both a dominant tenement and a servient tenement in separate ownerships. Although not tested in the Royal Court, a servitude will also be likely to have some of the same characteristics as the test set out in the English Common Law case of Re Ellenborough Park[3].

A servitude in Guernsey may either be a ‘servitude réelle’, or a ‘servitude personnelle’. A servitude réelle is a right in land (a form of ‘immeuble’ in Guernsey) and is thus capable of registration on the records of the Island at His Majesty’s Greffe (records office). The servitude réelle has been described in the Royal Court case of Russell and Caine v Gillespie[4] as ‘the essence of which being that the burden runs with the servient land (and the benefit with the dominant land), creating a right which could be enforced by successors in title.’ We will return to the three types of ‘servitude réelle’ below, for the comparison exercise with England and Wales.

In contrast to the ‘servitude réelle,’ a ‘servitude personnelle’ is specific to a person and will take the form of a usufructuary right, or a right of occupation. It is not intended to (and nor does it) bind successors in title.

The three types of servitudes réelles

Broadly speaking (and inevitably there are exceptions), the three types of servitudes réelles are (1) those which are established by human action/express grant; (2) those which are established by law; and (3) natural servitudes. A practical example of the first type of servitude réelle would be a ‘tour d’echelle’ (a historic right to place a ladder on a neighbour’s land to repair and maintain one’s own property). Since the coming into force of the Access to Neighbouring Land (Guernsey) Law 2016, the grant of the tour d’echelle has largely fallen out of drafting favour.

An example of the second type of servitude réelle is when a piece or parcel of land is enclavé (the English equivalent of ‘landlocked’). In this instance, Guernsey customary law grants a right of access to the owner of the landlocked property over neighbouring land to the nearest public road and which is to be reached by the shortest feasible route consistent with common sense and minimal harm[5].

Finally, an example of the third type of servitude réelle would be rainwater flowing from higher land to lower land.

The Guernsey maxim: ‘nil servitude sans titre’

The maxim ‘nil servitude sans titre’ was expounded by the Rouen academic commentator and avocat, Henri Basnage de Beauval (1656-1710)[6]. It was his position that the customary law at that time stated that no servitude will exist unless it is set out in title (although in the case of a natural servitude réelle, this would be a rebuttable presumption, and equally so for party wall arrangements).

In essence, in the absence of the servitude being formally granted in title, the servitude is unenforceable and cannot be acquired by prescription, regardless of the duration that it may have been informally enjoyed. This is a diametrically different stance to England and Wales. It is also important to note that a servitude in Guernsey can be lost for non-user (extinctive prescription), as confirmed in the Guernsey Court of Appeal case of Smith v Slawther[7]. These considerations are the starting position for the Guernsey draftsperson today.

Conceptually, the ‘nil servitude’ maxim is a very important yardstick, since if a Guernsey conveyance fails to include a necessary servitude, or if the servitude is not described sufficiently accurately or widely, then it will either not exist at all, or it will exist in an unsatisfactory manner. There is, therefore, a tendency for Guernsey title documents to be very detailed. In practice, this mischief is solved by more expansive and broader definitions being given.

On occasions in Guernsey when servitudes are non-existent or defective, then the owners of both the dominant and servient tenements will need to consent to a correction of the document in the Royal Court (Contracts Court Division) in the form of a Réforme.

It is not common practice in Guernsey for a registered security holder to consent to such a correction since their security is effectively being improved and it would be incongruous for their consent not to be given. Guernsey does not have the protective and word-saving provisions set out in Section 62 of the Law of Property Act 1925 (LPA) (and its predecessor, Section 6 of the Conveyancing Act 1881, and to which we now generally turn.

England and Wales

England and Wales, unlike Guernsey, has both legal easements and equitable easements. This note focuses on the former. There are over 10 pieces of supporting legislation in this field, in addition to the ever-present LPA, ranging alphabetically from the Countryside and Rights of Way Act 2000 through to the Road Traffic Act 1988. It is therefore fair to say that the mainland draftsperson must apply their mind to a multitude of different considerations than their Guernsey equivalent, although the outcome of the grant may very well be similar.

Creation of easements

As an express grant of a legal easement must be created by deed and executed by the grantor pursuant to s.65 LPA, then the notion of being recorded in title is a loose parallel to the Guernsey customary law. The position in England and Wales is further reinforced in the context of registered land. In that case, should the servient land be registered, then the easement must also be registered to operate at law, since it constitutes a registrable disposition[8]. Readers will be familiar with the various other ways in which easements are created such as by statute, through the exercise of compulsory purchase powers[9], for example, by will or by contract.

The degrees of divergence between England and Wales and Guernsey are in the instances of implied grants of an easement. It is the case that the common intention of the parties is sufficient to give effect to a grant, as set out in Pwllbach Colliery Co Ltd v Woodman[10], although this would not be possible in Guernsey. 

Equally, in the instances of dispositions of part, Guernsey does not have the equivalent of the rule in Wheeldon v Burrows[11], which requires the consideration of matters such as quasi-easements over retained land having the characteristics of being continuous and apparent, amongst other things.

As previously alluded to, there is no statutory equivalent in Guernsey to s.62 LPA. That statutory mechanism brings with it multiple points for the draftsperson to consider, including the limits of its application and the exclusion of it by contrary intention set out in a conveyance[12].

Where there is, however, a degree of similarity between the jurisdictions is in the treatment of easements of necessity. Typically relating to rights of way benefitting landlocked property, early 17th century English jurisprudence[13] already indicated the courts finding favour in arguments that is was the presumed intention of the parties that a right of way would be included as part of any disposal. It is unsurprising that this area is a complicated one, given the need to demonstrate ‘necessity’ to the civil standard, namely on the balance of probabilities.

Prescription

It would be a missed opportunity not to mention one of the fundamental differences between Guernsey and England and Wales on the point of prescription. Although it forms the basis of detailed commentary due to its complexity, the mainland position on the acquisition of a right by long use has some roots in the Roman law requirement of ‘nec vi, nec clam, nec precario’.  This phrase has been translated by Lord Hoffman in R. v Oxfordshire County Council ex p. Sunningwell Parish Council[14] as meaning ‘not by force, nor stealth, nor the licence of the owner’. As one would expect, there are other preconditions to be met for the acquisition to be effective.

Unlike in Guernsey, prescriptive easements can be effective in three ways, namely (1) by Common Law; (2) by the doctrine of lost modern grant (1189); and (3) under the Prescription Act of 1832. That legislative measure introduced statutory prescription and the now familiar time periods of 20 years and 40 years; the former crystallising the right as a defence to a claim that the right did not exist in 1189 and the latter (basically) establishing the right as absolute and indefeasible[15].

Conclusions

Notwithstanding the two very different legal regimes in Guernsey and in England and Wales, and particularly concerning the present subject matter, there are nevertheless similarities. The treatment of easements of necessity, and natural easements are instances where there is some symmetry, also certain elements of ‘nil servitude sans titre’ and the requirements of Section 65 LPA.

Guernsey customary law has shown itself well able to cope with the nuances of 21st century conveyancing (albeit with some statutory infrastructure and Common Law intervention), and equally England and Wales reach a similar outcome with their legislative framework.

An appreciation of difference.

Anna Douglass is a solicitor and Alastair Hargreaves is an advocate of the Royal Court of Guernsey and a solicitor, both with Ferbrache & Farrell LLP
ferbrachefarrell.com

[1] Ferrière, Dictionnaire de Droit et Pratique (1779) as referred to by Adv. GSK Dawes in Laws of Guernsey (Hart Publishing) (2003).

[2] For e.g., Pardessus, Fournel, Basnage, Laurent Carey and Gérard Cornu.

[3] [1956] Ch 131.

[4] 2003-04 GLR 54.

[5] The Rector and Churchwardens of St Saviour v Traisnel and Bougourd (1989) 7 GLJ 51.

[6] Referred to in Fallaize v Gaudion (1987) 5 GLJ 50.

[7] 26 GLJ 79(CA,1998) drawing the distinction between a servitude continue and a servitude discontinue.

[8] S.27(2)(d) Land Registration Act 2002.

[9] S.13 Local Government (Miscellaneous Provisions) Act 1976.

[10] [1915] AC 634.

[11] (1879) 12 Ch 31.

[12] S.62 (4) LPA.

[13] Clarke v Cogg (1607) Cro Jac 170 and Packer v Wellstead (1658) 2 Sid 39,111.

[14] [2000] 1AC 335, see also the Court of Appeal decision in Winterburn v Bennett [2016] EWCA Civ 482 dealing with the meaning of use without force.

[15] S.2 Prescription Act 1832