The foreshore: where do you draw the (water)line?
The foreshore issue has recently received a lot of publicity, including the case of a homeowner who had to pay compensation to the States for an encroachment in order to sell his home, or risk wiping significant value off it. This case is concerning for any coastal property owner or prospective buyer. What are the possible implications for coastal properties?
The history behind the foreshore
The foreshore is the area of land between the high tide mark and the low tide mark (most of us would think of it as the beach). It was predominantly owned by the Crown i.e. Her Majesty, although Seigneurs (feudal lords) of Jersey have – and some still do – claim possession of parts of it. Decisions relating to the land were taken by the Lieutenant Governor or delegated to the Receiver General on behalf of the Crown. In 2015 the Crown transferred all its interests in the foreshore to the Public (i.e. the States of Jersey) and our government now has control of the foreshore.
The main problem is that in reality the land between the low tide mark and the high tide mark can include far more than just the beach. As a result a number of properties, or at least features of properties, are now deemed to be encroaching on States-owned land, despite having been constructed long before the handover to the States. How can this be so?
There are some special features of the ownership of land by the Crown, one of which is that prescription does not run against the Crown. In Jersey, you can claim ownership of, or have ‘prescriptive title’ to land if you have uninterrupted and unchallenged possession of it for 40 years or more. The term used in Jersey law for this is ‘possession quadragénaire’. In the case of the foreshore, the States argue that the prescription period only began when the foreshore was transferred to them by the Crown in 2015. As a result, encroachments that went unnoticed for many years under the Crown now have 38 years until they obtain possession quadragénaire.
A number of homeowners whose properties are against the sea wall have already been informed that their balconies, extensions or steps down to the beach are encroaching on States property, and that they must therefore pay to keep them in situ or face having them demolished. The bitter irony for the owners of these properties is the fact that many of these encroachments were constructed with planning approval and building consent from the States. One set of steps constructed during the Crown’s ownership of the foreshore was even approved by ‘Her Majesty’s land administrator’.
What if it affects my home?
If you are one of the property owners unfortunate enough to receive correspondence from the States informing you that you are encroaching on the foreshore, the precedent set by the recent cases appears to be that compensation is decided through a valuation (which you will most likely have to pay for), carried out by a surveyor of your or the States choosing. Legal fees involved in the settlement will most likely be paid by the owner. The highest figures settled on have reached in the region of £30,000.
As of yet there has been nobody with a strong enough will, or perhaps more accurately deep enough pockets to challenge the States on the matter of the foreshore, however there is a counter argument which might hold water. Despite the fact that prescription does not run against the Crown, it could be argued that this does not preclude the prescription periods which have already passed being used against the Public, as the new owner, in the normal interpretation of the law. After all, the rule only existed to protect the Crown and many of the properties have had uninterrupted enjoyment for the period required under possession quadragénaire. The special circumstances of the Crown’s ownership no longer exists and it is perhaps not fair or equitable that the Public should have the benefit of the waived/forfeited prescription periods that under normal circumstances are enshrined in the law. In more simple terms, if a property has been in its current state for 40 years with uninterrupted enjoyment, it is this fact that should take precedent now that the Crown no longer owns the foreshore. It is also worth mentioning that the island’s Seigneurs may wade into the murky waters of foreshore ownership in the future, if circumstances arise where they feel that the States are overstating their claim and themselves interfering with land that the Signeurs perceive to be theirs.
Prior to the former Lieutenant Governor, General Sir John McColl, handing over the foreshore, he stated that “the government of Jersey has expressed a view that ownership of the seabed and foreshore would assist effective management and economic development, particularly in the area of renewable energy projects” and “Her Majesty wishes to support the interests and aspirations of the people of Jersey as expressed through their elected representatives”. Perhaps the recent events are not exactly what he or Her Majesty envisaged. In any case, when buying a sea front property it should be noted that there may be encroachments which the States are yet to pick up on, or if you are planning to sell, be aware that questions regarding potential encroachments may be asked by a prospective purchaser’s lawyers.
If you have been affected by the issue of the foreshore or are thinking about buying a property on the seafront, contact Viberts as we have experience in dealing with this issue.
Telephone: +44 (0) 1534 888666