Pushing The Boundaries – Jersey’s Royal Court Develops The Law On Encroachments

The inspection of property boundaries for potential encroachments is a central part of the Jersey conveyancing process and to an outsider may appear somewhat obsessive. However, this apparent obsession is for good reason: it has traditionally been considered that the Royal Court has no alternative, on finding that an encroachment existed, but to order its removal. This could clearly be harsh and disproportionate in many cases, especially where the encroachment is minor and non-deliberate.

The Royal Court decision in the recent case of Fogarty v St Martin's Cottage Limited will therefore be widely welcomed. Departing from the approach adopted in the earlier case of Felard Investments Limited v Trustees of the Church of Our Lady Queen of the Universe, the Court held that in an appropriate case it can award damages to compensate a landowner for a neighbour's encroachments. Demolition is not the only option.