island
November 2013
FREE
OPPORTUNITIES
property The place to find homes for sale and rent.
Available free each month from news stands and real estate agents islandwide.
Paget, Harbour Views • Renovated 4 bedroom + apartment • Tiled flooring throughout • Walk to the Ferry Stop, grocery store
$925,000
NEWS
Devonshire, Bright & Airy • Nicely finished 2 bedroom • Open plan with private patio • On acres of manicured grounds
Location, location, location!
$475,000
fireplace, diningroom with fireplace, a sitting room, study/home office, and three substantial bedrooms with bathrooms en suite all of which open onto large, covered balconies with stairs down to the pool at each end.
Southampton, Exclusive Lot • Spectacular water views • Approx, half acre, Res 2 • Potential for substantial home plus • dwelling
Two internal staircases lead to the lower/pool level where you will find the Pub, a powder room, laundry room, gym and the spacious, poolside guest suite. The lower porches spill onto the expansive pool deck, and the picturesque pool.
New on the market, “Knollwood” is a substantial home situated on over an acre of private and peaceful property in the heart of Paget. This home is perfectly designed for entertaining, both indoors and out. Major additions were carried out eight years ago and a new, stateof-the-art kitchen was outfitted in 2008. An authentically-constructed English-style pub was custom built in 2009. On the main level are the spacious kitchen with breakfast room, formal living room with
$475,000
The beautiful gardens include a large, level lawn, a paddock, a Secret Garden and other delightful areas surrounded by a wonderful blend of mature trees, hedges and old Bermuda stone walls.
Also, more building lots...
“Knollwood” is an exceptional property offering an oasis of tranquility all within 5 minutes of Hamilton.
www.decoutore.com
Available at US$4,375,000 to Bermudians, PRC’s and International Purchasers. Please contact Sole Agent Liz Lusher at Joy Lusher Real Estate, Ltd. for more information or an appointment to view. (See our ads inside).
St. George’s - nicely located Scotts Hill - with lovely water views Scaur Hill - two adjacent 1 acre lots
Visit us at
for many more fantastic properties! P.O. Box HM2184 Hamilton HM JX - WWW.DECOUTORE.COM
TELEPHONE: (441) 292-4990
TRESSPASS AND UNCERTAIN BOUNDARIES David Kessaram, Head of Litigation, Cox Hallett Wilkinson Limited
Trespass on a neighbour’s land may occur by the construction of a building over the boundary or the creation of a driveway or the erection of a fence on the adjacent land. This article examines the remedy of the landowner whose land has been trespassed on and particularly the availability of an injunction to force the removal of the offending construction. The landowner whose land has been built upon without permission may lose the right to complain about the trespass if no action is taken to prevent the continuation of the trespass. As a general principle, the law requires that people take prompt action to protect their property or to enforce their legal rights. Failure to take action within the time periods prescribed by the law will usually result in the loss of the property or the right in question. When it comes to trespass to land, the law is generous in permitting the innocent party 20 years to take action to prevent the continuation of a trespass. However, even if action is taken within the prescribed time, it does not always follow that the trespassed land will be returned to the use of its rightful owner. The innocent landowner may be denied an injunction to compel the trespassing structure to be removed if he has sat on his hands. Instead the court may grant a remedy in damages. The effect of the denial of an injunction will be essentially to force the innocent party to part with his land to his transgressing neighbour for monetary compensation. In a case decided in the Privy Council the owner of an undeveloped lot of land noticed that his neighbour was building a house and swimming pool and a security fence on his neighbour’s adjacent undeveloped lot. He thought nothing of it until years later when on visiting the land again his suspicions were aroused that part of a wall and some fencing surrounding the swimming pool was built on his land. He instructed surveyors who confirmed that there was an encroachment on his land by some 455 square feet. The court refused to compel the removal of the encroachment and awarded damages instead. In such circumstances the court will consider the following factors in deciding whether to grant an injunction or force the innocent party to rely on his remedy in damages: a. The extent of the injury to the plaintiff ’s legal right. If the injury is small this may cause the court to lean towards awarding damages as a remedy.
b.
Whether the injury is capable of being estimated in money.
c.
Whether it would be oppressive to the defendant to grant an injunction.
The grant of an injunction is in the discretion of the court. The factors listed above are the main factors which will be considered. However, there may well be others. The state of mind of the trespasser may be relevant, e.g., whether the trespass was committed with a reckless disregard for the position of the boundary. No one factor will be decisive. Damages instead of an injunction have been awarded notwithstanding that the trespass was blatant. High-handed conduct by the trespasser may, however, be a factor in the court’s decision whether to award additional damages to reflect the court’s disapproval of the defendant’s behavior and/ or the distress and humiliation caused to the claimant. Exemplary or aggravated damages have been awarded in cases where the defendant’s encroachment was wilful or deliberate; or where the trespass was committed with a view to making a profit over what would be payable as compensation to the owner of the trespassed land. The ordinary assessment of the quantum of damages to be awarded to the innocent party does not depend on a real estate valuer’s assessment of the actual value of the land on a square foot basis. In the case mentioned above the Court approached the question of assessment of damages by looking at the gain in value of the trespasser’s land. It considered what the parties would notionally have agreed as the purchase price of the land if there had an arm’s length negotiation prior to the trespass. Where such an approach is adopted the additional value to the trespasser’s land by the enhancement of its amenities was a major factor in the determination of what the parties would have agreed to be paid for the trespassed land. The lessons to be learned from these cases is that landowners need to be wary of incursions on their land by their neighbours. It cannot be taken for granted that action within the periods prescribed by the law will ensure that the court will order the trespasser to return the trespassed the land to its former state. The court has adopted a set of principles for awarding compensation in money instead of an injunction where to do so would be more just between the parties. This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.
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