Cresta Bella Condominium Association and Schmid v Thompson et Al

• Jurisdiction: Bahamas
• Judge: Winder, J.
• Judgment Date: 13 February 2015
• Court: Supreme Court (Bahamas)
• Docket Number: 2014/CLE/gen/00062
• Date: 13 February 2015

Supreme Court

Winder, J.

2014/CLE/gen/00062

Cresta Bella Condominium Association and Schmid

and

Thompson et al

Appearances:

Alpin Russell Jr. for the plaintiffs

Ellsworth Johnson for the defendants

Real Property - Breach of terms in condominium provisions — Whether Board of Condominium properly constituted — Non-compliance — Action could not be maintained without proper authority — Whether general meeting was improper in circumstances where it was not conducted in accordance with the by-laws — Appointment of non-unit owners to Board was improper and invalid — Finding that in the absence of a duly established Board no authority existed to commence action — Whether there was acquiescence by the management to allow defendant's on the dogs property — Finding on the evidence that the defendants were allowed to keep dogs on the property in contravention with the rules — Action dismissed — Section 13 and 14 of the Law of Property and Conveyancing (condominium Act.

Winder, J.

This is an action by the plaintiffs seeing declaratory relief as to the provisions of the Declaration of Condominium of The Cresta Bella Condominium and a permanent injunction to restrain the defendants from harbouring pet dogs on the property of the Cresta Bella Condominium.

1 The plaintiffs commenced an action by specially indorsed Writ of Summons dated January 23, 2014. The statement of claim indorsed thereon provided as follows:

1

The First plaintiff is and was at all material times a Condominium Association having been constituted and registered in the Commonwealth of The Bahamas on the 31st day of January, A.D. 2011 under the name and style of Cresta Bella Condominium Association. 2. The Second plaintiff is and was at all material times the General Manager, President and Secretary of the First plaintiff. 3. The First and Second defendants are and were at all material times owners of Condominium Unit Number Seven (7) of the said Cresta Bella Condominium. 4. The First and Second defendants at the time of the purchase executed their Conveyances and agreed to abide by the terms and conditions of the Declaration of Condominium. 5. That section fifteen (15) of the Second Schedule to the Declaration of Condominium states as follows: “No Unit Holder shall keep any animals in his unit without the prior permission in writing of the Body Corporate” 6. The First and Second defendants shortly after the time of purchase brought to the said condominium unit number seven (7), two (2) pet dogs in breach of the rules of the Declaration of Condominium 7. The Second plaintiff informed the First and Second defendants of the breach and requested them to have the pet dogs removed from the premises. The First and Second defendants removed the pet dogs for a few weeks but later returned them to the condominium unit. 8. The First and Second defendants were notified on numerous occasions that because of the pet dogs prospective buyers did not want to buy the units and has created a serious problem for the First and Second plaintiffs to sell additional units to prospective purchasers.2 9. The Second plaintiff again informed the First and Second defendants of the breach and requested them to have the pet dogs removed from the premises, which the First and Second defendants failed to do. 10. The pet dogs create a nuisance and health hazard to which the First and Second defendants have been notified. 11. By letter dated the 7th day of November, A.D. 2013 issued by the Attorneys for the First and Second plaintiffs, the First and Second defendants were notified to remove the pet dogs which they refused to do. 12. By reason of the matters aforesaid, the First and Second plaintiffs have suffered loss and damage.

AND THE PLAINTIFF CLAIMS:–

1

A Declaration that the First and Second defendants are in violation of the Declaration of Condominium. 2. An Injunction restraining the First and Second defendants, by themselves, their servants, licencees or agents for allowing the pet dogs to remain on the premises. 3. Interest. 4. Costs. 5. Such further and other relief as the Court deems just.

2 The Defence was filed on 7 July 2014 and provided in part as follows:–

6

As to paragraph 7 the first time the defendants were requested to remove the pet dogs from the premises was on or about September 2013 some two years and nine months after occupying the Unit 7. The pet dogs were never removed and then returned. 9. Paragraph 10 of the Statement of Claim is denied and the defendants state that the alleged nuisance is as a result of stray dogs and cats venturing onto the premises. 14. The defendants states further that the Second plaintiff is the biological aunt and aunt-in-law of the First and Second defendants respectively. 15. The defendants states further that the two pet dogs mentioned in paragraph six (6) of the Writ of Summons filed herein on the 23rd of January, 2014, were given to the Second defendant as a gift by the First defendant on in 2004 and 2007… 16. The Second plaintiff was always aware of the fact that the pet house dogs were part and passel of the defendants' family… 17. The defendants states further that the First defendant was integrally involved in the design of the condominium structure, in fact the First defendant was responsible for drawing the plans for the said condominium. 18. The defendants states further that the Units one (1) through six (6) of Cresta Bella Condominium were incomplete and uninhabitable at the date of the filing of Writ of Summons herein. 22. The defendants states further that the reason for the demarcation concerning Units eight (8) and seven (7) is because the Second plaintiff and the defendants had agreed that the proposed fenced areas was and are intended for the pet dogs of the defendants and the eventual acquisition of a Rottweiler by the Second plaintiff. 23. The defendants states further that the Site Plan was annex to the Declaration of Condominium Cresta Bella Condominium and was lodged at the Register General's Department on the 11th February 2011, in accordance with the Law of Property and Conveyancing (Condominium) Act Ch., 139 (hereinafter called “the Act”). 24. The defendants states further that on February 2011, the defendants with the full knowledge and direct and/or implied approval of the plaintiffs moved into Unit No. 7 of the Cresta Bella Condominium situate on Lot No. 72 in the Jacaranda Subdivision, along with the pet dogs with the expressed and/or in the alternative the implied consent of the plaintiffs. 25. The defendants states further that the Second plaintiff in her capacity as a member of the extended family of the defendants would often times visit at the home of the defendants along with her son and play with the pet dogs. 26. The defendants states further that the boundaries of the Cresta Bella Condominium situate on Lot No. 72 in the Jacaranda Subdivision are not fenced which result in stray dogs and cat encroaching on the subject premises. 29. The defendants states further that at the date of the filing of the Writ of Summons herein in accordance with the Act and the Declaration of Condominium Cresta Bella Condominium there has been no meeting of the Body Corporate to elect a Board for the purpose of managing the said premises. 30. The defendants states further that in accordance with the Act and the Declaration of Condominium Cresta Bella Condominium no annual general meeting has been held neither has there ever been produced and audit of the accounts of the Association. 33. The defendants states further that as an intended member of the Body Corporate and in accordance with the Act and the Declaration of Condominium Cresta Bella Condominium the defendants are members of the Body Corporate and Members of the Board, however, the plaintiffs were never consulted on the decision to enforce section 15 of the Second schedule of to the Declaration of Condominiums.”

3 The plaintiffs called three witnesses in their case, Betty Schmid, Anthony Miller and Kevin Oliver.

4 Betty Schmid's witness statement provided in material particulars as follows:

I, BETTY SCHMID of the Western District of the Island of New Providence one of the Islands of the Commonwealth of The Bahamas make oath and say as follows:–

• 1. That I am the Second plaintiff in this matter.

• 2. That I am the Majority Owner and Manager of Cresta Bella Condominiums and I am authorized to make this affidavit.

• 3. That the First and Second defendants are the Owners of Unit #7 Cresta Bella Condominiums and at the time of purchase they executed a Conveyance and stipulated to the Declaration of Condominium agreeing to all restrictions and conditions as laid out in both documents.

• 4. That at the time they purchased Unit #7 the First and Second defendants agreed to accept the said Unit #7 and the Unit entitlement as stipulated in the Deed of Conveyance dated April 5th 2011 which said Unit Entitlement was also pronounced in the Declaration of Condominiums Exhibit CB200 was also submitted to the Ministry of Works and clearly together with Page 3 #7 defines in words and depictions, the Unit boundaries. Additionally, Page #4 item #13 in accordance with CB200 defines the Unit boundaries. Further, Page #12 “THE FIRST SCHEDULE” apportions the Owners percentages and Unit #7 percentages are precisely the same as Units #1 through Unit #6. To the best of my knowledge CB100 was attached to the Declaration to define the “Building” with regards to the location of the Units, the office, Utility and Parking areas.

• 5. The First defendant is a draftsman and Co-worker of the Architect Mr. Kenrad Wilchcombe who was commissioned to prepare the plans for the Declaration of Condominium. On October 18th 2010 Plan #101810 was submitted by the First defendant for my approval this plan showed the grassy areas behind Unit #7 & Unit #8 as depicted on the plan attached to the Declaration. This plan was rejected....