Fogarty v. St. Martin's Cottage [2016] 2 JLR 246 (05 October 2016)

Fogarty v. St. Martin's Cottage [2016] 2 JLR 246 (05 October 2016)

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.

Citation
[2016] 2 JLR 246
Parties
Appellant: Fogarty; Respondent: St. Martin's Cottage
Jurisdiction
Jersey
Judgment Date
05 October 2016
Procedural Posture
Land Law Appeal / Appellate
Outcome
Implied servitude permitting encroachments recognized; respondent's property to continue to be enjoyed as previously.
Legal Topics
Servitudes, Implied Rights, Boundary Contracts, Destination De Père De Famille
Property Law Servitudes Implied Rights Boundary Contracts Destination De Père De Famille

Case Brief

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Parties

Fogarty

Appellant

St. Martin's Cottage

Respondent

Procedural Posture

Land Law Appeal / Appellate

Legal Issues

  1. 1 Whether an implied servitude exists permitting encroachments following a boundary contract and division of property
  2. 2 Whether the boundary contract resulted in a transfer of land and implied rights of enjoyment

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.