In the matter of Walton Degrevement

There has long been uncertainty in the profession as to whether an undivided share of immovable property owned in common can be the subject of a hypothec and therefore can in turn be the subject of a dégrèvement. For example, Matthews and Nicolle, the Jersey Law of Property , states at para 1.19:-

"... as for hypothecation, it has been held that a joint owner of Jersey immovables does not have an interest which can be separately hypothecated (re dégrèvement Bonn at 1783 - 1786), and it is very doubtful that an owner in common can hypothecate his part indivise, although there is no authority on the point."

Conversely, the Jersey Law Commission consultation paper No.8 on 'Security on Immoveable Property" ("the Law Commission paper") concluded at 14.5 that it could see no reason why it should not be possible to hypothecate undivided shares in immoveable property.

The matter came back before the Court on 2 nd December at which time Mr Syvret attended as one of the attournés and Crown Advocate Pallot attended on behalf of the Attorney General. The Court is most grateful to both of them for their assistance. Mr Lawrence de la Haye ("Lawrence"), the other brother who also owns a one third undivided share of the relevant property, also attended.

At the conclusion of the hearing, the Court ruled that one could have a dégrèvement of an undivided share of property owned in common and confirmed the respondent as tenant. We now give our reasons for that decision.