Proprietors Strata Plan No 305 v Greater Works International Fellowship and Another

• Jurisdiction: Jamaica
• Judge: Edwards J.
• Judgment Date: 22 May 2015
• Court: Supreme Court (Jamaica)
• Docket Number: COMMERCIAL DIVISION CLAIM NO. 2013 CD 00059
• Date: 22 May 2015

[2015] JMCC Comm. 6

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

COMMERCIAL DIVISION CLAIM NO. 2013 CD 00059

Between

The Proprietors Strata Plan No. 305

Claimant

and

Greater Works International Fellowship

1 ^st Defendant

And

Anthony Renaldo Young and Lorens Joy Young

2 ^nd Defendants

Ms. Carol Davis instructed by Carol Davis & Co. for the Claimant .

Mrs. M. Georgia Gibson-Henlin and Ms. Kamau Ruddock instructed by Henlin-Gibson Henlin for the 1 ^st Defendant .

The 2 ^nd Defendant was unrepresented .

REAL PROPERTY — STRATA TITLE — BY — LAWS RESTRICTING USER TO OFFICE OR SHOPS — WHETHER CHURCH OPERATION IN THE MALL HAS RESULTED IN UNREASONABLE INTERFERENCE WITH USE AND ENJOYMENT OF COMMON AREAS BY OTHER PROPRIETORS — COMPLAINTS THAT CHURCH CAUSING NOISE AND OTHER NUISANCE — CONTINUING BREACH OF COVENANT USING SHOPS AS A CHURCH — CONTINUING DISPUTES OVER PARKING SPACES AND NOISE — STRATA RUN BY CORPORATION — WHETHER THERE WAS ACQUIESCENCE TO THE BREACHES BY THE EXECUTIVE MANAGEMENT COMMITTEE — WHETHER THERE WAS UNDUE DELAY IN FILING CLAIM — WHETHER CLAIMANT NOW DEPRIVED OF RIGHT TO ENFORCE THE BY — LAWS — WHETHER INJUNCTIVE RELIEF UNJUST IN THE CIRCUMSTANCES — REGISTRATION (STRATA TITLES) ACT SS.9 AND 18.

Edwards J.

BACKGROUND

1 The Red Hills Mall (the Mall) located at 105 Red Hills Road, in the parish of Kingston, Jamaica, is the commercial strata property now at the centre of a dispute before the Court. The Claimant is the registered Strata Corporation named ‘The Proprietors, Strata Plan No. 305 (under the Registration (Strata Titles) Act (The Act) and is constituted of all the proprietors of this strata property. As such, the Claimant acts in a representative capacity for the individual strata unit owners. It is the Claimant that manages and administers the affairs of the strata property and all attendant powers to be exercised thereto are conferred on its Executive Committee.

2 The 1 ^st Defendant is a non-denominational “prophetic ministry” which purchased lots in the Mall from 2005. It now occupies seven of the strata lots, which for ease of reference I will henceforth call units. The units involved are 24, 25, 26, 27, 28, 29 and 30. The 1 ^st Defendant is the proprietor of units 27, 28, 29 and 30 and rents units 24, 25 and 26 from the proprietors of those units. The 2 ^nd Defendants are the proprietors of unit 24. The four units owned by the 1 ^st Defendant are used as a church. Units 25 and 26 are operated as an office and a bookshop, respectively and 24 is used as a meeting room and for Sunday school. Endorsed on the title for each proprietor are covenants made subject to the covenants endorsed on the strata plan 305.

3 In 2013, the Claimant sought and obtained an interim injunction preventing the Defendants from using the units in the Mall as a church. That injunction was stayed pending the outcome of this trial. The Claimant is now seeking a permanent injunction to prevent the Defendants, and specifically the 1 ^st Defendant from using the units as a church. The Claimant complained that the 1 ^st Defendant was operating the church in breach of the by-laws of the strata property and the covenants on the title. The injunction being sought is to restrain this practice.

4 In response to the claim, the Defendants counter-claimed that the Claimant had breached its statutory duty and/or that they had sought to enforce their statutory powers in an unfair and prejudicial manner. The Defendants sought a declaration from the court that it would be inequitable to allow the Claimant to enforce the by-laws with respect to the church, as they had acquiesced, and/or consented to the breach as to user thereby waiving their legal right to enforce the covenants. In the case of the 1 ^st Defendant it claimed that it had used the units as a church continuously without objections since 2005 when it purchased its first lots until 2013. It also averred that the Claimant, by its conduct, had led it to believe that there was no impediment to the use of the units as a church, by reason of which the 1 ^st Defendant acted to its detriment by establishing itself as a church in the mall.

The Submissions

5 There were several submissions made on both sides. I will attempt to do justice to the submissions but in the interest of time and space I will only seek to summarize them as best as possible. The submissions of the 1 ^st and 2 ^nd Defendants being identical in nature, I will attempt a single summary.

The Claimant's Submissions

6 The Claimant submitted that there had been and continues to be a breach of the by-laws of the strata property by the 1 ^st Defendant operating a church in a commercial mall. It was submitted that the strata property is governed by the by-laws which were duly endorsed on the Strata Plan and on each title. It was noted that the by-laws, amongst other things, prohibited certain activities and governed the use of both the common property and the individual units. In particular, the Claimant averred that the by-laws prohibited the use of the strata units other than as an office or shop. Further, the Claimant contended that the continued use of the strata units in violation of the by-laws constituted a continuing breach, with each day giving rise to a new breach.

7 The Claimant also submitted that by virtue of Section 9(8) of the Act, the by-laws are to be given the same force as the statute. In this regard, the Claimant urged the court to give effect to the by-laws by restraining the breach. The Claimant also submitted that as a matter of public policy, the by-laws must function as an agreement between the strata corporation and the individual proprietor. In this way the corporation was empowered to manage the property in the interest of all the proprietors. The Claimant further submitted that if the by-laws were not given this effect, proprietors would be able to ignore the by-laws and effectively make a mockery of such an arrangement.

8 With respect to the delay in bringing a court action to remedy the breach, the Claimant submitted that at the time the 1 ^st Defendant moved to the property, the strata management was ‘weak and ineffective’ and it was not at that time aware of its right to take legal action to restrain the breaches of the by-laws. In those circumstances, the Claimant advanced that where it was not aware of its rights there cannot be said to be any acquiescence to the breaches.

9 With respect to the 2 ^nd Defendants in particular, the Claimant submitted that as proprietors they too were bound by the by-laws. It was argued that the 2 ^nd Defendants were under a duty and ought to have advised the 1 ^st Defendant of the by-laws. In light of these considerations, the Claimant urged the court to grant the permanent injunction restraining the Defendants from operating a church from the premises.

The Defendants' Submissions

10 The Defendants have firstly submitted that the by-laws on which the Claimant relied on were void and of no effect. This, they claim, is so because there was no credible evidence that the by-laws were adopted by the strata in accordance with the provisions of the Act. Accordingly, they submitted that the true by-laws are those reflected in the 1 ^st Schedule of the Act and it was those by-laws which regulate the Proprietors Strata Plan 305. It was argued that, if in fact the by-laws were not amended in accordance with the provisions of the Act, they could not be enforced.

11 The Defendants also submitted in the alternative, that the application for an injunction ought to be refused because the Claimant had led the 1 ^st Defendant to believe that it had no objection to the use of the units as a place of religious worship. It was further submitted that the 1 ^st Defendant had operated as a church at the said location for eight years before there was any complaint with regard to user and in those circumstances, the conduct of the Claimant would have encouraged and or acquiesced to the breach or waiver of the by-laws. The 1 ^st Defendant contended that it had significantly improved on the units and as such they had relied on the Claimant's encouragement and acquiescence to their detriment.

12 The 1 ^st Defendant also advanced the argument that the attempt by the Claimant to restrain its use of the units as a church was oppressive and unreasonable. It alleged that the objections to the use of units as a church surrounded disputes relating to parking and noise. They argued that as a response to those disputes it had endeavored to co-operate to resolve those issues. It was submitted that parking could not be assigned in circumstances where the proprietors all held parking spaces as tenants in common. In response to the claim of noise nuisance, the 1 ^st Defendant asserted that it had caused the units to be soundproofed in an attempt to ameliorate the level of the sound emanating from church activities. The Defendants asserted that in those circumstances, the Claimant's complaints were oppressive, without merit and ought to be dismissed.

13 The 1 ^st Defendant further alleged that the Claimant's true objection to its operation was in relation to the church's non support of the strata management's enforcement methods for the collection of maintenance.

The Issues

14 There are a number of issues which are germane to the dispute between the parties to which the court must give consideration. It is important to note that both parties are in ad idem on the law which governs this dispute. Also, there are a number of undisputed facts. The issues raised in this case therefore, surround the proper application of the law to the facts at hand. The issues to be determined as I see them are:

1

Whether the by-laws are valid and enforceable; 2. Whether there has been a breach of the by-laws by the Defendants; 3. If so, whether the Defendants can...