LOCAL INFORMATION
11.01.30.L2
Purchase of Property - Freehold
Extent: Jersey
Updated 22 January 2019
Current Procedure
Contracts are passed before the Royal Court of Jersey on Friday afternoons and the Court comprises the Bailiff and two Jurats. Whereas previously, copies of the contracts were written out in long hand in the Public Registry, photocopies are now taken and it is that photocopy that constitutes the evidence of title to the property which you acquire. We do not have a system of 'deeds' as know in the UK. Once the original contract has been passed before the Royal Court and a copy of it retained in the Public Registry it ceases to be of any practical value to anyone other than the legal adviser who wishes to have access to it in the future in order that he may properly advise his client as to any queries that might arise in respect of servitudes, boundaries or title generally. From 1st November 2006 all contracts will be written in English.
The Roles of the Lawyers
The work of conveying a property is divided between the vendor's lawyer and the purchaser's lawyer. It is the task of the vendor's lawyer, having recourse to his client's own deed of purchase, to prepare a draft deed of sale of what his client is offering to sell to the purchaser. That draft deed of sale is then sent to the purchaser's lawyer for him to check on behalf of his client purchaser. The first task that the purchaser's lawyer's office should undertake is to ensure that the Housing Application form has been submitted in respect of the prospective purchaser. This quite often will have been done either by the parties themselves or by the estate agent, but occasionally falls to be completed by the lawyers acting for the vendor and purchaser respectively. In certain instances, where agricultural land or a particularly extensive garden is conveyed with a property, agricultural consent will also be required.
Searches
The next task that the purchaser's lawyer should undertake is that of dispatching search letters to the various parochial and statutory bodies who may be able to provide information in respect of the property. They will dispatch search letters to the Planning & Building Services Department in respect of both drainage and main roads, the relevant parish, Jersey Electricity Company & Jersey Water. All of those bodies can provide information which might have a profound effect on whether or not the purchaser decides to complete the purchase.
Mortgages
The purchasing lawyer should in the early stages also be enquiring of his client as to how he intends to fund the purchase. Frequently this will entail the obtaining of a mortgage. It is highly advisable to inform the lawyer acting for the purchaser as soon as possible as to the identity of the lender. Some banks internal procedures dealing with loans are more cumbersome than others and it can frequently be of assistance to the purchaser's lawyer to get in contact with both the bank concerned and the bank's own lawyers. The purchaser's lawyer can also provide confirmations as to the different incidence of legal fees which will attach to any mortgage. Any mortgage, however it is created, will attract stamp duty. If a relatively substantial amount of cash is to be paid to the purchaser's lawyer to make up the difference in the cash price payable for the property, arrangements should be made for that money to be placed with the lawyer either immediately prior to the passing of contract, or alternatively, for the client's own bankers to provide an irrevocable undertaking to the bank to provide the purchaser's lawyer with cleared funds. The purchaser's lawyer is under a legal obligation to pay over the monies, so it is imperative from their point of view to ensure that they are in a position to definitely pay over the monies, otherwise they are liable to be sued themself.
Checking Title
The prime task fulfilled by the purchaser's lawyer is to check title to the property. This entails the purchasing lawyer researching title on the basis of the information provided in the vendor's lawyers deed of sale. This research is conducted from computers in the Public Registry and takes the form of checking all transactions conducted by the vendor's predecessors in title for a minimum period of 40 years in the Public Registry. The aim of such exercises are to ensure that the vendor has an unencumbered marketable title to the property free from any prior outstanding claims. The Public Registry has details of contracts going back to 1798. Records prior to 1798 are held at the Jersey Archive. The purchaser's lawyer will at the same time ensure that the description of the property given in the draft deed of sale by the vendor's lawyer corresponds with the earliest deeds and the evolution of the original description in the Public Registry. He will also be at pains to ensure that all rights of way and other rights either over or for the benefit of the property to be acquired are properly set out in the draft deed of sale. The titles to the immediately neighbouring properties will also be looked at to ensure that the boundaries they claim towards the property to be purchased and rights set out in those properties' deeds again correspond with the information set out in the draft Deed of Sale.
Site Visit
Once title has been checked in the Public Registry and the relevant statutory and parochial authorities have all replied to the search letters, the purchaser's lawyer will attend on site. The purpose of the site visit is to ensure that the vendor's draft deed of sale (as checked in the Public Registry) corresponds with the situation on site. Certain buildings might have been demolished or extensions built. Demolitions can destroy boundaries and extensions can create encroachments which may or may not have been covered in previous deeds. The purchaser's lawyer will also ensure that the rights which the property require, such as rights of way and drainage rights, are provided for in the draft deed of sale. If any defects are found then the purchaser's lawyer will make a report to the purchaser, explain the difficulties and discuss whether or not the problem requires any remedial action to be taken. All that may be required is to obtain certain confirmations from the vendor's lawyer as to what has been done. Alternatively it may be necessary to approach a neighbour, to join them party to the client's deed of purchase, in order to agree certain remedial clauses to cover the problem encountered on site. An alternative approach is to obtain defective title insurance cover. Some difficulties may rise as a result of the information provided by the Planning Department. It may be unclear as to whether or not an extension has been approved. If the vendor cannot provide adequate assurances the next step is to ask one of the Planning building inspectors to attend on site and view the property.
Preliminary Agreements
Sometimes the arrangements of the vendor or the purchaser are such that a preliminary agreement will have to be entered into to provide for delayed completion. It is usual to provide a 10% deposit upon the signing of such an agreement. The agreement will also provide a penalty for failure to perform the contract. A client should never sign a preliminary agreement of sale until his lawyer has conducted all of his searches. Effectively at that stage the client is happy with the property, has conducted all checks and is happy to unequivocally commit to the purchase. In many instances, however, there will be one or two outstanding points which the purchaser will wish to be dealt with to satisfaction before completion is effected. Accordingly certain conditions will be imposed when the preliminary agreement is returned. Such conditions could relate to clarification of problems with title, the joining of a neighbour party to ratify a boundary or grant rights, the granting of a required mortgage, obtaining a satisfactory structural survey etc. Once the purchaser's lawyer has completed all the above task, they will consult with the purchaser and provide a full report as to any difficulties encountered, if they have not already done so, and will go through the terms of the deed of purchase in its final form.
Possession of the property
The purchaser's lawyer will also deal with one or two matters which are not strictly of a legal nature. They will liaise with their client as to anticipated possession dates. It is usual for possession to be afforded either on the day of the passing of contract or within three or four days thereafter. Longer delays do occasionally occur but should be covered in the terms of the conveyance on behalf of the purchaser by the purchaser's lawyer. If possession is to be given upon the day that contract passes before the Court then arrangements should be made to ensure that keys are handed over upon the passing of contract before the Court on the Friday afternoon.
Written Inventory
The purchaser's lawyer should also finally ensure that their client has clearly agreed with the vendor as to what items of furniture, carpeting etc., are to be left with the property. A written inventory should be prepared and should be countersigned by both parties. This simple step avoids dispute in the future.
Stamp Duty
11 See 11.1.50
Glossary
12
NB: The English translation will not supersede the original French - in the event of a dispute, the original French language will take precedence
NB: Words in brackets identify the context with which the translated word/term is to be used and does not form part of the translation.
| A fin d'héritage | In perpetuity |
| Adduction (f) | The supply |
| Aboutissant (of a building or wall) | Abutting |
| Angle (m) | Corner (a fixed point, of a building or structure)(cf.carre) |
| A piétons/à pieds | On foot/pedestian |
| Assiette (f) | Site (of a building) |
| Aupourportant de | Co-extensive with/Adjoining |
| Ayant droit (noun) | Successor in title |
| Ayant droit de | Deriving title from |
| Bailler à termage | To lease |
| Bail à termage | Lease |
| Bailleur (m) | Lessor |
| Bailler et Vendre | To sell (and subject to rente, hypothec or other encumbrance) |
| Bailler, céder et transporter | To cede and transfer (land subject to rente, hypothec or other encumbrance) |
| Bail, cession et transport | Cession and transfer (of land subject to rente, hypothec or other encumbrance) |
| Banque | Bank |
| Becquet (m) | Small piece (of land) |
| Bel (m) (Voir cour (f)) | Yard |
| Bié (m) | Mill leat |
| Bien-fonds (m) | Corporeal hereditament (see also corps de bien-fonds) |
| Boîte de distribution (f) | (JEC) section pillar |
| Bordure (f) | (1)Kerb (2)border |
| Borne (f) | Previously established/existing boundary stone |
| Carre(f) | Corner (a location e.g. of field) |
| Cassé et annulé | Cancelled and annulled |
| Céder et transporter | To cede and transfer |
| Cession et transport | Cession and transfer |
| Champ (m) | Field (unenclosed) |
| Chasse (f) | Driveway, Carriageway, Avenue |
| Chemin à piétons | Footpath |
| Chemin particulier (m) | Private roadway |
| Clos (m) | Field (enclosed) |
| Clos et étanche | Wind and water tight |
| Clôture (f) | Enclosure |
| Contrat | Contract (of title) |
| Contrebanque (m) | Contrebanque (earth bank faced or reinforced with stone) |
| Corps de bien fonds (m) | Corpus fundi (pl.Corpora fundi) |
| Côtière | Wall (of a building) (cf.gable) |
| Côtil | Côtil (steeply sloping field) |
| Cour (f) | Yard |
| Désastre | Désastre |
| Donataire (m) Donatrice (f) | Donee |
| Donateur (m) | Donor |
| Donation, cession et transport | Gift, cession and transfer |
| Donner, céder et transporter | To give, give, cede and transfer |
| Douairière (f) | Dowager |
| Douet (m) | Brook, stream |
| Droit de chemin et passage | Right of way and passage |
| Droit de jointure | Right to join |
| Droit d'usufruit et jouissance | Right of usufruct and enjoyment |
| Eau pluviale | Rain water |
| Eau Superficielle | Surface water |
| Égout collecteur (m) | Principal drain |
| Emplacement (m) | Site (of a building) |
| Encoignure (f) | Corner (or a building) |
| ou environ | Or thereabouts |
| Epurs et immondices | Waste and sewage |
| Etant convenu(e) et accordé(e) | It being agreed (c.f. new clauses) |
| Etant reconnu | It being acknowledged (c.f. existing clauses) |
| Fonds (m) | Fonds/Ground ownership |
| Fosse (f) | Pit/Ditch |
| Fosse d'aisance(f) | Cesspit |
| Fossé | Bank/Hedge |
| Fosse septique (f) | Septic tank |
| Fourniture et garantie | Statutory guarantee of title |
| Géon | Gorse |
| Haie vive (f) | Hedge (of plants) |
| Hêche (f) | Gate |
| Héréditaire | Hereditary (qualifying a transaction eg. Sale or gift to indicate that it concerns title to land) |
| Héritage (m) | Hereditament or Realty |
| Hôgard (m) | Stack-yard |
| Hypothèque conventionnelle (f) | Conventional hypothec |
| Hypothèque foncière (f) | Hypothec foncière |
| Hypothèque légale (f) | Legal hypothec |
| Issues | Verge/land forming part of an access way including the roadway & shoulders thereof |
| Lisière (f) | Strip (of land) |
| Mielle | Sand dune |
| Mitoyen | Party owned |
| Mitoyenneté | Party ownership |
| Morceau (m) | Small piece (of land) |
| Mur de soutènement (m) | Retaining wall |
| Nocs et gouttières | Down pipes and gutters |
| Partage (m) | Contract of division/partition of immoveable property |
| Pièce de terre (f) | Parcel of land |
| Pierre ou devise (f) | New boundary stone (now being established) |
| Pignon (m) | Gable |
| Planche de bord | Fascia board |
| Portique (m) | Porch |
| Possession propriétaire | Proprietary possession |
| Possession quadragénaire | Forty years possession (prescriptive title |
| Pré (m) | Meadow |
| Preneur (m) | Lessee |
| Puisard (m) | Soakaway |
| Puits (m) | Well |
| ès-qualités | In that capacity |
| Redevance | Encumbrance |
| Regard (m) | Man hole, Inspection chamber |
| Relief (m) | Relief |
| Rente | Rente |
| Rent viagère (f) | Secured income for life |
| Ruelle (f) | Narrow road/Lane/Alley |
| Sans fourniture ni garantie | Without statutory guarantee of title |
| Serre | (1)Greenhouse (2)Conservatory |
| Soupirail | Weep hole |
| Talus (m) | Embankment |
| Terre (f) | Land (normally cultivable) |
| Terrain (m) | Land (open and unexploited) |
| Tour d'échelle (f) | Ladder span |
| Toutes fois et quantes et à tous usages | At all times and for all purposes |
| Tuyau de trop plein (m) | Overflow pipe |
| Vendre, céder et transporter | To sell, cede and transfer |
| Vente, cession et transport | Sale, cession and transfer |
| En verre dormant | Non-opening opaque glass |
| En verre opaque | Opaque glass |