Proprietors Strata Plan #126 v Daniel Lowe
| Jurisdiction | Cayman Islands |
| Judge | Cheryll Richards |
| Judgment Date | 02 August 2019 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | Cause No: G 0013/2018 |
The Hon. Justice Cheryll Richards Q.C.
Cause No: G 0013/2018
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CIVIL DIVISION
Civil Law — Breach of Restrictive Covenants, Implied or Express Easements, Strata Titles Registration Law .
Mr. John Meghoo on behalf of the Plaintiff
Defendant in Person
On the 22 nd July 2015, the Defendants, Daniel Lowe and his wife Lorraine Lowe became the registered joint proprietors of Block 22E, Parcel 183 HI. This is apartment number 9, Prospect Legacy Apartments, Phase Two in George Town, Grand Cayman (“the property”) This apartment is one of a block of six apartments. There are other units sequentially numbered in another block in Phase One.
The origin of title on registration of the property is recorded in the Land Register as being by First Registration, Mutation no. Strata Plan 126. The Register also records that the title to the property is subject to the restrictive agreements as listed in the Bye-laws for the said Strata Plan and any amendments thereof. The apartment is therefore registered as a strata lot pursuant to the Strata Titles Registration Law (2013 Revision). This Law was originally enacted in 1973.
Mr. Lowe and his wife took actual possession of the property on the 12 th June 2015. On moving in, Mr. Lowe considered the outside areas of the property to be insecure, bare, unkempt and unattractive. He is an avid gardener and embarked on a series of privacy, security and beautification activities designed he says to enhance the property, make it more secure and improve its condition. These activities included, re-staining the front door of his own property, in a different color from the other five units, putting down pavers at his front door, and affixing a security camera to the outside of his apartment. Subsequently he planted various flowers by the wall to his unit and placed red and yellow bricks to create a border around them. He planted several fruit trees in the yard of the complex, and fully enclosed a previously partially enclosed area to the rear of his apartment by using board fencing material and two doors which had been discarded by the owners of a neighboring property. He had keys made for those doors and locked them. Inside of this now fully enclosed area, he planted more plants and flowers. He produces before-and-after pictures of the areas and considers that they have been upgraded and enhanced. He spoke with pride of the many compliments that he has received from passers-by when they walk their dogs and questions the Godliness of people who do not like flowers.
The Plaintiff, Proprietors Strata Plan 126, is the Strata Corporation for the said Apartment Complex (hereinafter referred to as “the Corporation”). It appears before the Court through its management entity, Estate Management Services represented by its managing director Lavinia Jones. The Corporation responded with concern to Mr. Lowe's activities. It asserts that Mr. Lowe did not have the permission of the Corporation to carry out these exterior activities and that some of the work which he has done, for example with the brick borders around the plants is not up to standard. It appears that the Corporation tried initially to reach compromise positions with Mr. Lowe. The Corporation caused all the other five front doors to be re-stained to match the color used by Mr. Lowe, removed the pavers which he had put down, and gave after-the-fact permission to him to install security cameras. The Corporation tried to reach an agreement with him to transfer to the Strata the management of the trees and plants which were planted on Common Property without permission. The tipping point for the Corporation is not only that the enclosure completed by Mr. Lowe extends beyond his own patio and into the Common Property of the Strata but that within that particular area of the Common Property is the septic treatment plant for the entire complex. In order to access the septic plant, to carry out its maintenance duties, the Plaintiff, must either obtain a key from Mr. Lowe or request of him in advance to leave it open for inspection or for access by workmen.
Following a letter to Mr. Lowe and his wife on the 20 th October 2015 from the Corporation's Attorneys, an annual general meeting on the 19 th March 2016 at which Mr. Lowe was present and a further letter to the Lowes on the 22 nd February 2017, Mr. Lowe continued to refuse to remove the enclosure. The septic plant remains enclosed to this day.
On the 18 th January 2018 the Corporation filed an Originating Summons which seeks the following:
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i. An Order for demolition of the enclosure and the removal of other plants and articles unlawfully constructed, placed or planted on the Common Property of the Strata;
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ii. An Order prohibiting construction, placing or landscaping of the Common Property without the express written consent of the Plaintiff's Executive Committee; and
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iii. Costs on an indemnity basis against the Defendants.
The Defendants acknowledged service on the 8 th February 2018, indicating an intention to defend. Mr. Lowe filed a Defence in person on the 5 th March 2018 in which he asserts primarily that the construction of the fence (the enclosure) was authorised by the managing director, Ms. Jones but that because she was not contacted when it was constructed, she became angry and said that it should be taken down. He further asserts inter alia the following:
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i) When he bought the property, two sides of the fence had already been erected.
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ii) He wrote to the Plaintiff by letter dated 29th June 2015 as to his findings relative to the property and his intention to beautify it. He says, “I did not hear from her again for several weeks so I went ahead and created border (s) around the apt.” This was just temporary.
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iii) The cameras were installed as a result of thieves coming on to the property and distributing stolen goods.
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iv) On the 17 th July, 2015, he attended a meeting with some owners, at apartment 10. The owners of apartments 10 and 13 were present. Those present voted in favour of the flower beds and trees that he planted.
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v) Since the invasion of the thief he erected the other side of the fence.
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vi) The Plaintiff told him to remove the fence “to avoid blocking out the treatment plant which would make the area look bad and the fence was already built and cost him to install now to cut it off would cost him again and this is without regard to his financial position and easement”. He also says:
“During that meeting all owners came to look at the work done and asked that I cut off the fence to put it by the brick area. I do not agree and refuse to take it down so I think it made the Plaintiff [the Plaintiff's representative] mad and she started a vendetta against me. The Plaintiff spoke to me telling me where to put the fence but to call her when I was doing it, I didn't call her that is why she wants the fence torn down to please herself and out of spite.”
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vii) He has offered to give the managing director a key and to leave the door open whenever access is needed.
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viii) He was told by the Real Estate agent when he bought the place that the space at the back of the apartment was theirs.
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ix) The fence is needed for privacy and security.
He ends by asking that the Court stay the Plaintiff's suggested order and allow matters to remain as is. He says that the septic plant was in a deplorable state when he moved in, and that having improved the state of it, he should be allowed some easement.
The matter came on for hearing on the 10 th July 2019. Mrs. Lowe did not attend. Mr. Lowe advised the Court and Counsel that his wife did not do any of the work, he is the one who did everything and that his wife did not wish to have the embarrassment of attending Court. The Plaintiff's Attorney indicated that he had no objection to proceeding in her absence. The matter therefore proceeded in the absence of the Second Defendant.
At the start of the hearing Mr. Lowe was given permission to file his Affidavit in the matter which he had not previously done. There was no objection to this as his Affidavit is in the same terms as his Defence which was filed on the 5 th March 2018. He produced an unsigned Affidavit later in the day prior to giving evidence. He swore to the truth of its contents in the witness box and undertook to swear and file same the following day, which he did.
The primary issue between the parties is one of fact as to whether or not Mr. Lowe received permission to fully enclose the area to the rear of his apartment and to plant trees and flowers in the Common Area of the Complex.
The onus is on the Plaintiff to satisfy the Court on a balance of probabilities that he did not have such permission.
The Strata Titles Registration Law provides in section 3 that the proprietor of land upon which a building is to be constructed may apply to the Registrar for a horizontal or vertical subdivision to be known as strata lots in accordance with a plan which is to be known as a strata plan. Where such a plan is registered, strata lots under the plan may be devolved and be dealt with in the same manner as land which falls under the Registered Land Law.
On the 9 th October 2012 the Law was amended to include in s.3 the following:-
“(2A) Upon registration of a strata plan, complete strata plan, phase strata plan and an amended strata plan—
(a) the land described in such plan is divided into strata lots and common property, if any, in accordance with the plan; and
(b) the proprietor of each strata lot is entitled to all the rights and obligations of a proprietor including the right to vote as a member of the...
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