What does it all mean? A look at Jersey Property Law Jargon

A look at some of the legal jargon a prospective purchaser may encounter when involved in the legal process of buying a property in Jersey.

Until November 2006 all contracts for the sale and purchase of freehold property in Jersey were drawn up in the French language. Since then it has been mandatory for all contracts to be in English. Although the move from French to English has made it easier for a prospective purchaser to understand his contract of purchase, there is still a certain amount of jargon which surrounds the conveyancing process and which this article seeks to decipher.

Share Transfer/Flying Freehold

These are the various methods by which flats in Jersey are conveyed. Until 1991, share transfer was the only method by which flats could be conveyed, as whoever owns land owns everything above and below, and it was therefore not possible for flats to be separately conveyed. The solution was for the block of flats to be owned by a company and for the shares in the company to give rights of occupation to the various flats. So in a share transfer it is not actually the flat which is being conveyed but rather the relevant shares in the property holding company. After 1991, due to the enactment of the flying freehold law, it became possible to convey the freehold of a flat, so both methods are now used for the conveyance of flats.

Judicial Hypothec

If a purchaser is borrowing money from a Bank to help fund the purchase, the Bank will require a charge over the property. The most common form of charge is known as a judicial hypothec. This gives the lending Bank security over the property for its loan and various rights should the borrower fail to repay.

Jointly and for the survivor

If a couple buy a property together it is usual for them to buy the property jointly for themselves and the survivor of them or, in Jersey legal French, "conjointement par ensemble, pour eux, le survivant d'eux et les hoirs de tel survivant". This means that upon the death of one of the parties, the property passes automatically to the survivor. If however the couple decide to purchase the property in equal shares, each party will own a 50% interest in the property and upon the death of one of the parties that party's interest will pass to whoever inherits under that party's will or, if there is no will, to whoever inherits under the rules of intestacy. The interest will not necessarily pass to the other 50% holder.

"Vices Cachés" (Hidden Defects)

Every contract of purchase will include a clause stating that the property is sold with as many defects, hidden or apparent, as may exist on the date of sale. A purchaser should therefore satisfy himself by means of a survey that the property is in good order as it is unlikely that he would have any recourse against the seller if this was not the case. If the purchaser is buying a newly built property, he should receive a warranty from the developer to correct any defects that may appear in the property during an agreed defects liability period.

Servitude

This is a right which one property enjoys over the property of another, such as a right of way or a right to lay drains and services. The property which enjoys the right is called the "dominant tenement" and the property over which the right is exercised is called the "servient tenement".

Restrictive Covenant

This is a restriction on a property in favour of one or more other properties preventing the property from being used for certain purposes or prohibiting building on the property.

"Relief" (Offset)

If a property owns a boundary wall or hedge, that wall or hedge may also have a "relief" over the neighbour's land. This is a strip of land 16½ inches (or 1½ Jersey feet - Jersey feet are smaller!) in width immediately alongside the wall or hedge and which can only be used for access to the wall or hedge for maintenance purposes.

Moiety

If a property claims the moiety or "mitoyennete" of a wall or hedge, this means that the wall or hedge is party-owned between the property and the neighbouring property.

Fixtures and Fittings

Those things which are fixed to the property and which pass with the property to a purchaser on sale. It is not always easy to decide what is a fixture or fitting. A bookcase secured to a wall is likely to be included in the definition but a moveable garden shed may not be.

And finally

We hope this helps to decipher words and phrases you may come across when buying or selling a house or flat in Jersey. Ask your lawyer to explain any other terms that you come across. After all, your house is likely to be your most valuable asset so it is important that you know what it all means!