(1)Richard Escobar and Pamela Escobar, (2)Charles Vose Jr., (3)Msairnsea LLC v Chub Cay Realty LLC
| Jurisdiction | Bahamas |
| Judge | Madam Justice Indra H. Charles |
| Judgment Date | 03 December 2021 |
| Court | Supreme Court (Bahamas) |
| Docket Number | 2020/CLE/gen/01359 |
IN THE MATTER OF a Grant of Easement by deed dated 22 July 2004 between Chub Cay Resorts Limited of the first part, Chub Cay Associates Limited of the second part AND Cynthia S Brouwer et al (collectively called the Grantees) of the third part, recorded in the Registry of Records in book 11394 at pp. 435 to 454.
The Honourable Madam Justice Indra H. Charles, Senior Justice
2020/CLE/gen/01359
COMMONWEALTH OF THE BAHAMAS
Land law — Easement — Recreational easements — Dominant and servient tenement — Four criteria — Whether the rights could amount to easements in law — Whether the absence of words of futurity in a document granting the easements excludes additional and/or replacement facilities
HELD: Finding that the Plaintiffs are entitled to use some of the facilities without being members of the Club and that the rights conferred amount in law to easements
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1. The intention of the Grant of Easements was to give access to the kind of facilities that grantees and their guests might expect to enjoy on a resort island.
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2. The absence of the words of futurity in the grant does not mean that the grant is limited to the actual facilities that existed at the time of the grant. Additional and replacement facilities could be included: Regency Villas Title Ltd and others v Diamond Resorts (Europe) Ltd and others [2018] UKSC 57 and Cayman Shores Development Ltd et al v the Registrar of Lands et al No. 143 of 2019 applied.
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3. As the island is a resort island, the right to enjoy certain facilities accommodates Chub Cay as the dominant tenement: In Re Ellenborough Park [1956] Ch. 131 and Regency Villas applied.
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4. The right of the Plaintiffs and their visitors to use the Club-like facilities would not substantially deprive the Developer of its legal possession thereof because the right is clearly stated as a right to use the facilities in the same way that non-members and guests of the Club would, and use the facilities in the way they are intended to be used: Re Ellenborough Park and Regency Villas applied.
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5. Recreational easements are now considered as conferring utility and benefit on those who undertake it: Regency Villas and Cayman Shores applied.
The Plaintiffs, who are lot owners on a resort island, Chub Cay, commenced this action against the Developer of Chub Cay, seeking a Declaration that they are entitled to access the Club and other facilities notwithstanding that they are not members of the Club. The Plaintiffs ground their assertion as to entitlement to the facilities in a Grant of Easements Deed. They also seek Declarations that the Developer cannot compel them to enter the
Amended Deed, which would have the effect of relinquishing their rights under the Grant of Easements. They also seek a Declaration that the Developer be prevented from restricting their use of vehicles that are not golf carts.
The Developer denies that the Plaintiffs are entitled to access the facilities without being members of the Club. The Developer further alleges that the Grant of Easements does not have the effect of granting access to the current facilities and that the rights of way asserted are not capable in law of being easements.
Mr. John KF Delaney QC and Mr. Edward J Marshall II of Delaney Partners for the Plaintiffs
Mr. Carlson H. Shurland QC of Shurland & Co. for the Defendant
This case relates to the law of easements and specifically recreational easements.
It also raises a novel question of whether the recent English Supreme Court decision in Regency Villas Title Ltd et al v Diamond Resorts (Europe) Limited [2018] UKSC 57 reflects the common law of The Bahamas in determining whether the right to use, subject to the payment of fees and charges common to other users, recreational facilities which are provided in a club environment on a private resort island in The Bahamas may be conferred by the use of freehold easements upon the owners and occupiers of adjacent freehold lots.
In the present case, the Plaintiffs seek a Declaration that, as owners in fee simple in possession of certain lots on the Island of Chub Cay, a resort island in the Berry Islands, they are entitled to use the Chub Cay Club and other facilities notwithstanding that they are not members of the Club. In support of their assertion, they rely on the Grant of Easements dated 22 July 2004, by which they say, they were granted an easement to access the said facilities.
The Defendant, the current developer of the resort island, denies that the Plaintiffs are entitled to access the Club and some of the facilities on two grounds namely: (I) the Grant of Easements did not have the effect of granting a right to the facilities constructed after the execution of that deed and, in any event, (ii) the rights alleged are not capable in law of being easements.
The Defendant has therefore excluded the Plaintiffs from the use of the Club and the other facilities on the basis that they are not members of the Club. Guests of Club members and guest of the Club hotel are permitted to use the Club and other facilities.
The evidence was presented in the form of affidavit evidence.
The Plaintiffs relied on the following affidavits: (i) Affidavit of Richard Escobar (1 st Escobar Affidavit) filed 15 April 2021; (ii) Affidavit of Lance Walker (“Walker Affidavit) filed 15 April 2021; (iii) Affidavit of Charles Vose Jr. (“Vose Affidavit”) filed 15 April 2021 and, (iv) Affidavit of Richard Escobar (“2 nd Escobar Affidavit”) filed 21 September 2021.
The Defendant relied on the following affidavits: (i) Affidavit of George Bishop (“Bishop Affidavit”) filed 31 March 2021; (ii) Affidavit of David Renaud (“1 st Renaud Affidavit”) filed 6 April 2021 and (iii) Affidavit of James Greer (Greer Affidavit”) filed 30 August 2021.
The following facts are agreed between the parties. Chub Cay is a private resort island. It is approximately 37 miles northwest of Nassau and 150 miles southeast of Fort Lauderdale, Florida. It boasts the prestigious Chub Cay Club (“the Club”) which has been the exclusive retreat for a very select membership. There is also a pristine beach, an air strip, a marina and dock, roads, restaurant, shops and other facilities which, altogether, creates a recreational environment for lot owners, guests and vacationers.
The Plaintiffs are not members of the Club. However, they are owners in fee simple in possession of certain lots (“Plaintiffs’ lots”) on the island. The history of the Plaintiffs’ property ownership on Chub Cay started with Mr. Vose in 1982, followed by the Escobars in 2000 and the Walkers in 2009. Prior to purchasing their lot in 2009, the Walkers had purchased a slip in the marina that same year.
The Defendant is a company incorporated under the laws of The Bahamas and since 25 July 2014, the current owner of the developer's interests with respect to Chub Cay. The Defendant is ultimately beneficially owned and/or controlled by George H. Bishop (“Mr. Bishop”) of Texas, USA. The original developer was Crown Colony Club Limited.
On 13 May 1974, the original developer sold Chub Cay to Chub Cay Investments Ltd.
Sometime in or about 1978, the interests of Chub Cay Investments Ltd. were acquired by Chub Cay Associates Limited (“Associates”) and Chub Cay Resorts Limited (“Resorts”). This was the start of the Associates and Resorts period of ownership (“Associates and Resorts period”) which lasted until 2005.
In or around 2004, the owners of Associates and Resorts had decided to sell their interests in Chub Cay to a third party.
By deed dated 22 July 2004, the Grant of Easements (“the GOE”) was executed between Resorts of the first part, Associates of the second part and Cynthia S. Brouwer et al of the third part. The GOE was first recorded on 18 October 2004 in the Registry of Records and again on 24 June 2011 at Volume 11394 pages 435-454. The GOE confers rights of easements in favour of all grantees.
The GOE came into existence as a result of the contemplated sale with a view to resolving doubts as to the rights of way and easements.
Each of the Plaintiffs are “grantees” under the GOE. “Grantees” is defined in the GOE to include the heirs, successors in title and assigns of the named grantees.
At the time of the GOE, Associates was the owner in fee simple in possession of the land comprising the western portion of Chub Cay, including the Chub Cay Club and Marina (“Associates’ land”). Resorts was the owner in fee simple in possession of a piece parcel or strip of land within Associates land between Lots M and N and the Remainder of Chub Cay (“Resorts’ land”). By the GOE, Resorts’ and Associates’ land was expressly subject to rights of way and easements created in relation thereto and subject to an airport, marina, restaurant and club facility in addition to roads, fields, water supply and other utilities. Amongst other provisions of the GOE, at Recital G, it is stated:
“(G) Doubts have arisen as to the exact location of the rights of way granted to the Grantees and as to whether rights of way were in fact granted over Associates’ land and further as no rights or easements were given in relation to use of the facilities on Associates’ land or Resorts’ land which rights of way and easements Associates and Resorts have at all times allowed the Grantees and each other respectively to use and at the request of Resorts and for the avoidance of any doubts and in consideration of the release by the Grantees of all other rights not previously granted to them by a document in writing that they may now enjoy over Associates land and over Resorts land Resorts and Associates have agreed to execute this document for the purpose of...
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