Sandyport Homeowners' Association Ltd v R Nathaniel Bain
| Jurisdiction | Bahamas |
| Judge | Winder, CJ |
| Judgment Date | 31 January 2023 |
| Docket Number | 2012/CLE/gen/01147 |
| Court | Supreme Court (Bahamas) |
Before Hon. Chief Justice Sir Ian R. Winder
2012/CLE/gen/01147
COMMONWEALTH OF THE BAHAMAS
IN THE SUPREME COURT
Common Law and Equity Division
Kahlil Parker KC for the Plaintiff
Meryl O. Glinton for the Defendant
This is an action by the Plaintiff, Sandyport Homeowners' Association Limited (the “Association”), to enforce restrictive covenants contained in a conveyance to the Defendant, R. Nathaniel Bain (“Bain”). Bain challenges the Association's locus standi and counterclaims for declaratory relief and damages for alleged losses suffered as a result of the Association's actions.
The Association is a limited company which is responsible for the common property and amenity areas (the “Common Areas”) within the residential development known as “Sandyport” in New Providence. The Common Areas consist of roadways, common parking areas, paths, waterways, swimming pools, tennis courts, security guard houses, walls, garbage collection points and the like. The Association maintains the Common Areas by levying maintenance, indenture and other charges on the owners of lots in Sandyport.
On the basis of an Indenture of Conveyance dated 21 May 2008 (the “Developer's Conveyance”), and a Deed of Assignment dated 3 November 2009 (the “Developer's Assignment”) (together the “Association's Documents”), both made with Sandyport Development Company Limited (the “Developer”), the Association has proceeded on the footing that it is vested with title to and is licensor of the Common Areas and it is entitled to enforce and effectuate the restrictive covenants binding residential lots in Sandyport (“Gated Lots”).
At the heart of this matter is an incomplete residence on a Gated Lot owned by Bain, namely, Lot 23 in Royal Palm Cay in Sandyport Phase 5A (the “Subject Property”). Bain acquired the Subject Property from the Developer in 2005 by an Indenture of Conveyance dated 29 September 2005 made between the Developer, Bain, and FirstCaribbean International Bank (Bahamas) Limited (“FirstCaribbean”) (the “2005 Conveyance”).
In the 2005 Conveyance, Bain covenanted in clause 2 as follows:
The Purchaser hereby covenants with the Vendor and all other persons claiming under the Vendor as purchasers of any part or parts of Subdivision Five to the intent that the burden of this covenant may run with and bind the land hereby conveyed and every part thereof into whosoever hands the same may come and to the intent that the benefit thereof may be annexed to and devolve with each and every part of Subdivision Five other than the land hereby conveyed that the Purchaser and all persons deriving title under the Purchaser will at all times observe and perform the said restrictions but so that neither the Purchaser nor the executors administrators or assigns of the Purchaser shall be liable for any breach of the restrictions occurring upon or in respect of the said hereditaments after the Purchaser or the executors administrators or assigns of the Purchaser shall have parted with all interest therein ….
The “ said restrictions” referred to in clause 2 of the 2005 Conveyance (the “Scheduled Restrictive Covenants”) were set out in a Schedule to the 2005 Conveyance and included the following:
(5) No building fence wall or other structure including but not limited to, garage, swimming pool house drives parking areas landscaping, sea wall slip, boat landings, docks, piers dolphins or mooring posts modifications or alterations (‘Structures’) whatsoever shall be erected placed or altered on any lot or canal unless and until the proposed detailed plans and specifications thereof shall have been approved in writing by the Vendor. All Structures shall be of the Sandyport Georgian Colonial style. Every application to the Vendor shall be in writing and shall be accompanied by (a) the detailed plans and specifications of the proposed Structures including adequate offstreet parking and exterior colour (b) the details of the proposed type of construction (c) a plot plan showing the proposed location of Structures on the lot and (d) a drainage plan showing the position of drainage swales and conduits and (e) a construction schedule (collectively called ‘the Plans’). Such approval shall not be given if the Vendor in its sole discretion determines that the proposed Structures would affect the integrity (by appearance or otherwise) or endanger any part of the remainder of the Sandyport Property or buildings. The issuance by the relevant Government authorities of a building permit which may be in contravention of these restrictions shall not prevent the Vendor from enforcing these provisions.
(8) No Structure shall be built erected or landscaped other than according to the Plans approved in writing before the same is commenced and shall not after be altered in external appearance without the like approval of the Vendor in writing.
(9) If within forty-five (45) days after the issue of a receipt in writing for such Plans by the Vendor no written objection shall have been received by the owner from the Vendor then such Plans shall be deemed to have been approved.
(13) All construction activity on any lot and traffic shall be subject to the general supervision of the Vendor.
(29) No building or other structure shall remain unfinished for more than One (1) year after the same shall have been commenced. No lot shall be left without being landscaped for in excess of one (1) year from the date hereof unless a building has been commenced.
These proceedings were commenced by the Association by Writ of Summons on 28 August 2012. The Association's case is that Bain commenced and carried on construction on the Subject Property without its approval and without paying the requisite fees, in breach of the Scheduled Restrictive Covenants. The Statement of Claim provides:
1. The [Association] is a limited company having its Registered Office in the city of Nassau, New Providence, an island on The Commonwealth of the Bahamas, carrying on a non-profit business within the said Commonwealth as the owner, operator, and licensor of the [Common Areas], and the beneficiary of the restrictive covenants binding the properties, within the Sandyport Residential Development, in the Western District of the said Island of New Providence.
2. By virtue of a conveyance between [the Developer] and the [Association] dated the 21st day of May A.D. 2008, recorded in the Registry of Records in Volume 10446 at pages 162 to 187, the [Association] became the owner of the [Common Areas] in the Sandyport Development as defined in the said conveyance. By virtue of the Deed of Assignment between [the Developer] and the [Association] dated the 3rd day of November A.D. 2009, stamped and now or about to be recorded in the Registry of Records, the rights, title, and interest, of [the Developer], as Vendor in the original conveyances of properties within Sandyport and licensor under the various licenses granted to property owners in Sandyport, were assigned to the [Association].
3. By virtue of an Indenture of Conveyance dated the 29th day of September A.D. 2005, [Bain] became the owner of all that piece parcel or lot of land being [the Subject Property], in the said Sandyport Subdivision, which conveyance is Recorded in Volume 9473 at pages 308 to 325 (hereinafter referred to ‘the property’).
4. [Bain's] use and enjoyment of the property is subject to restrictive covenants in favour of the [Association] set out in the Schedule to [Bain]'s conveyance. Clause (5) of the Schedule to [Bain]'s conveyance provides that: ‘no building fence wall or other structure… whatsoever shall be erected placed or altered on any lot or canal unless and until the proposed detailed plans and specifications thereof shall have been approved in writing by the [Association]…such approval shall not be given if the [Association] in its sole discretion determines that the proposed structures would affect the integrity (by appearance of otherwise) or endanger any part of the remainder of the Sandyport Property or buildings. The issuance by the relevant Government authorities of a building permit which may being contravention of these restrictions shall not prevent the [Association] from enforcing there provisions’. [Bain], in breach of the said restrictive covenant, has commenced construction on the property which has not been approved by the [Association].
5. Clause (13) of the said Schedule provides that: ‘All construction activity on any lot and traffic shall be subject to the general supervision of the [Association].’ Pursuant to its rights and obligations in this regard, as well as its duties under Clause (25) set out hereinabove, the [Association] requires all owners within Sandyport to submit, in addition to their application for approval, an application fee of $1,000.00, to defray its cost in conducting the requisite reviews and securing the requisite expert opinions, and, upon approval, a construction fee of $2,500.00 to address the attendant costs of supervising and ongoing maintenance due to construction traffic. [Bain] has failed and refused to pay the requisite application fee and has declared his intention in advance to refuse to pay the construction fee, should his application have met with the [Association]'s approval. However, notwithstanding [Bain]'s refusal to comply with the rules and regulations for the due operation of the Sandyport community, the [Association] has preliminarily examined proposed drawings submitted by the [Association] [sic] on or about the 15th day of August A. D. 2012, on a conceptual application basis.
6. Notwithstanding that the [Association] has yet to approve the said drawings, and [Bain] has yet to pay the requisite fees, [Bain] has unlawfully commenced and continued construction activity on the...
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