Property Case Law Update - Sea views and servitudes: Neighbours at war

• Town (Bantry Bay) neighbours - let’s call them A and B - whose houses “enjoy spectacular views of the Atlantic Ocean which contribute significantly to their huge value” came to blows when A (the neighbour in front of B), started building without municipal plan approval and in breach of restrictive title deed conditions and zoning scheme requirements.
• At a “settlement” meeting, B agreed not to object to the planning applications for departure and title deed amendments that A needed.
• According to B, A had then (in exchange for these concessions) orally agreed to register various height servitudes over his property in favour of B’s property.
• Subsequent attempts by the parties to agree on a written recordal of this oral “agreement” failed after a long saga of disagreement over draft “agreements”, offers and counter-offers.  In the end B relied on a “draft agreement” drawn up by A but signed only by B.  A’s version was that this partially-signed draft was in fact no more than a rejected offer. 
• Nevertheless A continued with his development to completion, unhindered by any objection from B.
• But when B then tried to enforce registration of the servitudes, A denied having agreed to any specific departure or details of any height servitudes, forcing B to turn to the High Court for assistance.  He won his case and the High Court ordered A to register the servitudes.

In writing or invalid

“A verbal contract isn't worth the paper it's written on” (Samuel Goldwyn) 

On appeal however, the SCA disagreed, holding that B had failed to prove the existence of a valid agreement by A to register a height servitude.  No oral agreement had been proved and in any event our law requires any agreement for the alienation of “any interest in land” – such as the exchange of rights in this case - to be in writing and signed by both parties.

Save your sea view!

Saving your sea view could be as simple as agreeing with your neighbour to register a “height servitude” – but take advice before you agree to anything relating to your property to make sure that your agreement is in fact valid and enforceable.

Source  -  Jooste Heswick Attorneys Inc