The Access To Neighbouring Land (Guernsey) Law, 2016: When Customary Law Needed a Helping Hand

Guernsey is a very special place for a number of reasons. One of those reasons is that it is a twenty-first-century example of how customary law is still playing an important part in our society. Guernsey customary law has its roots in the twelfth-century law that applied throughout the Duchy of Normandy and of which the Bailiwick Islands formed part.

As one might imagine in those different times, the treatment of land and property and inheritance was very important, and it still is.  Traditional practices and habits became established rules over time and then became acknowledged by the Courts as a source of law.

The administration of Guernsey property is a classic illustration of customary law.  There are very few pieces of legislation which need to govern it, since the system has worked effectively for centuries and continues to be adaptable. That said, there are times when more certainty is needed, and when a piece of legislation is most appropriate.  Such is the case concerning access to neighbouring land.

The starting point, with its Norman Law heritage, is the legal maxim “nil servitude sans titre”.  This basically means that in the absence of a written right in the title of a property to do ‘something’, then there is no legal right to do that ‘something’.  Predictably, there is more to it than that, but for these purposes let us assume that meaning.

So, if a neighbour has no written right in a conveyance (or similar document) to access next door to maintain a gable, or a wall, or even have drains there, then it is technically a problem.

However, historically, it rarely was a problem, as Guernsey customary law recognised the principle of “bon voisinage” or good neighbourliness.  Thus, if neighbours needed to go next door to carry out works for the benefit of their own property, they generally asked, were granted permission and that was the end of it. Unfortunately, over time, that reliance on people’s community spirit and goodwill did not always work.  Some neighbours refused, others required payment or imposed conditions which precluded the access that, in turn, might have led to disrepair or worse.

As responsible lenders always assess their exposure to risk, and particularly so on repossession, the ‘uncooperative neighbour’ scenario is an unacceptable one for them. A lender would not want to have to go through the repossession process of saisie to then find itself in the ownership of a property with title difficulties and practical repair issues.

Currently, Advocates look to solve this problem by preparing neighbour agreements to rectify any uncertainties or to grant new rights of access to maintain, for example.  Even that process is not ideal as it can add to the cost, and to the transaction time. So, to fill the gap where no rights exist in title, or where it is not feasible to obtain a neighbour agreement, the new Access Law provides a judicial remedy.  The Law is the product of many years of work, including research as to how other parts of the world solve this problem.  It is a very welcome addition to the conveyancer’s toolkit.

In a nutshell, if a neighbour asks for access for reasonably necessary works of preservation, repair or maintenance and is refused, then that disappointed neighbour is able to make an application to the Royal Court requesting an Order permitting such access.

The new Law also covers the position where services are involved, and even party or jointly-owned walls, structures or growing things.  The procedure in those cases is slightly different, but ultimately the Court is able to make an Order to allow access.

As one might expect, the Law also contains powers for financial penalties to be imposed for breaches of any Court Orders granted.  Just in itself, that may have a sufficiently dissuasive and deterrent effect to encourage the ‘bon voisinage’ which is so important in our Island Community.

As the Law has already been approved by Her Majesty, it is just a matter of time before it takes effect in Guernsey.  At the time of writing, it is hoped that the commencement date will be in early May 2017. So will begin a new chapter in Guernsey property, but happily, the customary law continues to flourish, albeit with a little help.