Felard Investments Ltd v Church of Our Lady, Queen of The Universe (Trustees)

JurisdictionJersey
CourtRoyal Court
Judge(Ereaut, Bailiff and Jurats Bailhache and Le Cornu):
Judgment Date26 January 1978
Date26 January 1978
ROYAL COURT
(Ereaut, Bailiff and Jurats Bailhache and Le Cornu):

R.G. Day for Felard Investments Ltd.;

W.R. Stone for the Trustees.

Estoppel—proprietary estoppel—applicability of doctrine—not applicable in Jersey

Land Law—servitudes—extinction—extinguished by confusion, renonciation, expropriation, non-user for 40 years, destruction and by agreement with passing of deed before Royal Court—reliance on servitude not precluded by proprietary estoppel, as doctrine not recognized in Jersey

EREAUT, BAILIFF: Felard Investments Limited (hereinafter called "the Company") is the owner of the property known as "Halfway House", situate at Millbrook, in the parish of St. Lawrence, which it purchased by deed dated 14th February, 1969, from Mr. Lennard Le Blancq. That property adjoins on the East a property known as "The Church of Our Lady, Queen of the Universe", which belongs to the Reverends Michael Fitzsimons, James Moran, Francis O'Connor, Patrick McDonnell and Joseph Ryan (hereinafter called "the Trustees"), to which they have a right by deed of purchase dated 29th October, 1955, from Mr. Harold William Penseney.

The Company and the Trustees have a common predecessor in title in Mr. Edward John Le Blancq. By deed dated 18th May, 1934, the said Mr. Edward John Le Blancq sold to the said Mr. Penseney the land now belonging to the Trustees, whilst retaining the property now belonging to the Company. That deed contained the following covenants relevant to this action.

The first such covenant, (hereinafter referred to as "the restrictive covenant") which restricted what might be built on a six foot strip of land forming the easterly part of what is now the Company's property, and on the land in front of the house or houses then known as "Halfway House", reads as follows:-

"Que ledit Bailleur et Vendeur et ses hoirs ne pourront en aucun temps ériger ou faire ériger de construction quelconque: Premièrement, sur la lisière de six pieds de terrain á l'Ouest et au pourportant desdites bornes de l'Ouest, et Deuxièmement, sur le terrain en devant de ladite maison ou maisons connues sous le nom de "Halfway House", joignant par l'Est à partie de la terre présentement baillée et vendue et ce afin de ne pas obstruer la vue des maison ou maisons que ledit Preneur et Acquéreur ou ses hoirs pourront par la suite faire ériger sur la pièce de terre présentement baillée et vendue".

The second such covenant, which provided that only residential houses might be built on the land now owned by the Trustees, reads as follows:-

"Qu'il ne sera jamais érigé ou construit sur ladite pièce de terre que des maisons bourgeoises avec offices et garages convenables, étant expressément entendu qu'il ne sera jamais erigé, fait valoir ou conduit sur ladite propriété présentement baillée et vendue soit dans aucun edifice érigé sur icelle aucun établissement ou commerce quelconque, l'exercice d'une profession libre exceptée".

Albert Edward Le Blancq, the then owner of "Halfway House", was a party to the aforesaid deed dated 29th October, 1955, in order to permit the construction of a church or chapel on the land sold and the relevant clause reads as follows:-

"Que nonobstant la restriction mentionnée dans la susdite clause ayant rapport à l'érection ou la construction sur ladite pièce de terre que maisons bourgeoises avec offices et garages convenables il sera loisible auxdits Révérend Michael Fitzsimons et autres, les survivants d'eux survivant d'eux et ses hoirs, de faire ériger ou faire construire sur partie de ladite pièce de terre présentement baillée et vendue une chapelle ou église avec ses offices et dépendances; le tout à fin d'héritage".

Under the title conferred by that clause, the Trustees built on their land a church or chapel (and not domestic residences).

During 1973 and 1974, the Company, believing that it had obtained the verbal consent of the Trustees to the removal of the restriction on building on the six foot strip forming the easterly part of its land and furthermore that by the conduct of their agent the Trustees had shown that they were prepared to pass before the Royal Court a deed removing that restriction, demolished the existing building "Halfway House" on its land and caused to be constructed a new building which extended across the whole width of the strip except for some three inches. The Trustees subsequently denied that any consent had ever been given to the removal of the building restriction or that there had been any such conduct as alleged and refused to pass before the Royal Court a deed of arrangement for that purpose, except on terms unacceptable to the Company.

The Company now wishes to sell its property, but is unable to do so because the proposed purchaser is not prepared to risk litigation in the future. The Company has therefore brought a representation to the Court containing two alternative requests:

1. that the Court should declare that the building restriction has been extinguished, on the ground that it was designed for a particular purpose which never came into existence;

2. that the Court should, in all the circumstances, apply the doctrine of proprietary estoppel and declare that the Trustees are estopped in perpetuity from enforcing the building restriction as regards the existing building.

The Trustees oppose both the Company's requests. Furthermore, they ask the Court to order that that part of the building which has been constructed on the strip in breach of the restriction should be removed.

By consent, this judgment is limited to considering the two requests of the Company, and we begin with the first, which asks that we should declare that the building restriction has been extinguished.

The argument of the Company in this matter was as follows. On a proper interpretation, the words in the restrictive covenant beginning "et ce afin de ne pas obstruer la vue des maison ou maisons" refer not only to the restriction on building on the land in front of the then "Halfway House", but also to the restriction on building on the six foot strip. The latter restriction was therefore created to protect a view to be enjoyed by the occupants of houses to be built on the Trustees' land, but no houses have been built, a church having been erected instead; and the church has no view which requires protection, because its windows are of stained glass and at such a height as to prevent those in the church from looking out through the windows. Accordingly, the purpose of the creation of the restriction has never come into existence and therefore the restriction has become extinguished.

We accept, on the authority of Pothier, Coutumes d'Orléans (1821 ed.), vol. 2, art. 228 (3), at 233, and of Dalloz, Nouveau Repertoire, vol. 4, Servitudes, paras. 504-512, at 147, that a servitude becomes extinguished if (inter alia) either the dominant or servient tenement are destroyed with no hope of rebuilding or there is a change in either which renders the use of the servitude impossible. However, in this case we do not find that the construction of a church instead of houses can be interpreted as the destruction of the dominant tenement, nor has that fact rendered the use of the servitude impossible, for the following reasons:

1. On a proper interpretation of the restrictive covenant, the words quoted above refer to the restriction on building on the land in front of the then "Halfway House", and not to the restriction on building on the six foot strip of land. This is clear, not only from the grammatical construction, but also when applying commonsense. The view from the houses could have been materially affected by a building erected in front of "Halfway House", that is, to the South and nearer the road; it could not have been materially affected by building on the strip. In fact, the new building on the Company's land does not extend beyond the southern limit of the previous building, and so the second restriction in the restrictive covenant has not been breached.

2. It seems also clear that the restriction on building on the strip was created in order to enable the owner of the land now owned by the Trustees to build up to the Western boundary of the land, because a clause in the deed dated 18th May, 1934, gave him the right to place windows in any wall which might be erected on that boundary.

3. It must be assumed that, had it been intended that the substitution of a church for private houses should have the effect of nullifying the restriction on building on the strip, then effect to that intention would have been given in the deed dated 29th October, 1955, but it was not so given.

4. There is, in any event, nothing to prevent the Trustees or any subsequent owner of their property from demolishing the church and building private houses on the site.

We therefore find that the restriction on building on the strip has not been extinguished by reason of the fact that a church was constructed instead of houses.

We next deal with the second, and principal, request of the Company, which is that the Court should, in all the circumstances, apply the doctrine of proprietary estoppel and declare that the Trustees are estopped in perpetuity from enforcing the building restriction as regards the existing building.

That doctrine is discussed under that name in Snell's Principles of Equity, 27th ed., at 565-568 (1973). Its essentials are well summarised in Halsbury's Laws of England, 4th ed., vol. 16, para. 1511, as follows:

"Expenditure on the land of another. If A spends money on B's land believing that the land belongs to A or that A has or will obtain some interest in the land and B, knowing of A's mistaken belief, stands by while the money is being spent or encourages the expenditure, B will not be heard to assert his title to the land so as to defeat A's expectation at least without compensating A for his expenditure. The principle also applies where A...

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13 cases
  • E.M. Lane, M.S. Lane and Warren-Gash v R.R Lane
    • Jersey
    • Royal Court
    • 5 August 1985
    ......Jo. 301. (5) Felard Invs. v. Trustees of the Church of Our Lady ... is clear; see for example Felard Investments v. Trustees of the Church of Our Lady Queen of e Universe , 1979 J.J. at pages 19 and 23; the reply of Mr. ......
  • Joyelle Anne Carry v Michael Joseph Liston and Lesley Marie Liston (nee Jebbett)
    • Jersey
    • Royal Court
    • 8 September 2017
    ...re Basham [1986] 1 WLR 1498. Gillett v Holt [2001] Ch 210. Felard Investments v Trustees of the Church of Our Lady Queen of the Universe [1978] JJ 1; 1979 JJ 19. Flynn v Reid [2012] (1) JLR 370. Farley & Sons Limited v Takilla Limited (1989/22, 11 May 1989). Symes v Couch 1978 JJ 119. Yor......
  • G.P. Pirouet v L.J. Le M. Pirouet and Four Others
    • Jersey
    • Royal Court
    • 12 August 1985
    ......N.S. 1068; 10 W.R. 742. . (4) Felard Invs. v. Trustees of Church of Our Lady &c. , ......
  • R v Abacus (CI) Ltd ex parte Viscount Wimborne
    • Jersey
    • Royal Court
    • 19 May 1983
    ...... in income or capital of trust fund until trustees have exercised their discretionary powers ... widest sense is clear; see, for example, Felard Invs. v. Trustees of the Church of Our Lady en of the Universe, 1979 J.J. 19, at pages 18 and 23; the reply of ... the resulting income (if any) in any investments hereby authorised the said investment being held ......
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