Fogarty v. St. Martin's Cottage [2016] 2 JLR 246 (05 October 2016)
- Citation
- [2016] 2 JLR 246
- Status
- Judgment
- Jurisdiction
- Jersey
- Posture
- Land Law Appeal / Appellate
More details
- Posture
- Land Law Appeal / Appellate
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
Where a boundary contract results in a new encroachment, the logical consequence is a transfer of land and the implication of a servitude permitting the encroachment, so that the respondent's property may continue to be enjoyed as previously.
Court disposition
Implied servitude permitting encroachments recognized; respondent's property to continue to be enjoyed as previously.
02
Material facts
Parties
Fogarty
AppellantSt. Martin's Cottage
Respondent03
Procedural history
Posture
Land Law Appeal / Appellate
04
Questions and positions
Legal issues
- 01
Whether an implied servitude exists permitting encroachments following a boundary contract and division of property
- 02
Whether the boundary contract resulted in a transfer of land and implied rights of enjoyment
Party arguments
- Applicant
- The appellant argued that the boundary contract created a new encroachment of part of the respondent's property over the appellant's, and that the logical consequence was a transfer of land requiring implied servitudes to maintain previous enjoyment.
- Respondent
- The respondent contended that their property should continue to be enjoyed as previously, relying on the principle of destination de père de famille to imply necessary rights.
05
Court’s reasoning
Legal principles
- 01
Jersey customary law
On division of a single property into two, it is assumed that each property retains necessary rights over the other to maintain previous use (destination de père de famille).
- 02
Jersey customary law
A boundary contract creating new encroachment logically involves a transfer of land and the implication of servitudes.
06
Ratio, limits and disposition
Ratio decidendi
Where a boundary contract results in a new encroachment, the logical consequence is a transfer of land and the implication of a servitude permitting the encroachment, so that the respondent's property may continue to be enjoyed as previously.
Court disposition
Implied servitude permitting encroachments recognized; respondent's property to continue to be enjoyed as previously.
Source and reliance status
Official court record
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Court record
Judgment
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BAILII >> Databases >> Jersey Law Reports >> Fogarty v. St. Martin's Cottage [2016] 2 JLR 246 (05 October 2016) URL: https://www.bailii.org/je/cases/JLR/2016/JLR162246.html Cite as: [2016] 2 JLR 246 [ New search ] [ Help ] Fogarty v. St. Martin's Cottage 2016 (2) JLR 246 (05 October 2016) Land Law-servitudes-dominant and servient tenements-destination de père de famille-on division of single property into two separate properties, assumed that properties have necessary rights over each other to maintain use previously enjoyed-if boundary contract between two properties creates new encroachment of part of respondent's property over appellant's, logical consequence that contract involved transfer of land from respondent to appellant-respondent's property to continue to be enjoyed as previously-implied servitude permitting encroachments The document you wish to view is available to registered users or can be purchased as a PDF. To purchase this document in PDF format or alternatively to Register to purchase membership go to the Jersey Law website via this link: 2016 (2) JLR 246 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/je/cases/JLR/2016/JLR162246.html
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