Sarah Chin-Jen Hsia v Martin Lyn

JurisdictionJamaica
JudgeJ Pusey J
Judgment Date21 January 2020
CourtSupreme Court (Jamaica)
Docket NumberCLAIM NO. 2017 HCV 02997
Date21 January 2020

[2020] JMSC Civ 5

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Coram:

J Pusey J,

CLAIM NO. 2017 HCV 02997

CLAIM NO. 2018 HCV 02906 (the Objectors)

In the Matter of All that parcel of land part of Vale Royal in the parish of Saint Andrew being the Lot numbered Three Block P on the Plan of Vale Royal of the shape dimension and butting as appears by the plan thereof … and being the land comprised on Certificate of Title registered at Volume 394 Folio 3 of the Register Book of Titles and known as 18 Upper Montrose, Kingston 6 in the parish of Saint Andrew.

and

In the Matter of the Restrictive Covenants numbered 2, 4 and 5

and

In the Matter of the Restrictive Covenants (Discharge & Modification) Act

Between
Sarah Chin-Jen Hsia
1 st Claimant

and

Marvin Gordon Hall
2 nd Claimant

and

Henderson Emanuel Downer
3 rd Claimant

and

Marcos Handal
4 th Claimant

and

UNA Pearl Witter
5 th Claimant

and

Brenda Rose Francis
6 th Claimant
and
Martin Lyn
1 st Defendant

and

Melissa Elizabeth Lyn
2 nd Defendant

and

Martyn Maxwell Lyn
3 rd Defendant

Miss Carol Davis and Mr. Seyon Hanson instructed by Carol Davis and Company for Martin Lyn, Melissa Lyn and Martyn Lyn, the claimants in 2017 HCV 02997 and the defendants in 2018 HCV 02906

Mr. Emile Leiba and Mr. Andre Marriot-Blake instructed by Messres. Dunn Cox, Attorneys-at-law for the claimants/Objectors in 2018 HCV 02906

IN CHAMBERS
BACKGROUND
1

Mr. Martin Lyn and his two children, Martyn Mathew Lyn and Melissa Elizabeth Lyn, became the joint owners of Lot numbered Three Block P part of Vale Royal in the parish of Saint Andrew registered at Volume 394 Folio 3 of the Register Book of Titles, with civic address 18 Upper Montrose Road, Kingston 6, in April 2017. The acquisition of the land was subject to several restrictive covenants endorsed on the title. Covenants numbered 2, 4 and 5 are important for present purposes. They essentially restrict the user of the land to a single residences.

2

By letter dated April 5, 2017 the Kingston and Saint Andrew Corporation (the KSAC) approved an application by the Lyns to construct a multiple residence complex comprising two, two bedroom town houses and four one bedroom apartments. The approval was made subject to a number of conditions including the following:

  • a) That this approval does not dispense with the obligation to apply for modification or discharge of any restrictive covenants where the approval is not in conformity with any covenants endorsed on the title and is subject to such modification or discharge as the case may be. The applicant shall, where the Restrictive Covenants (Discharge and Modification) Act applies, make the relevant application to the court.

  • e) The failure to comply with the conditions as listed above and the approved plans will be considered a breach and will render this approval NULL and VOID.

3

By Fixed Date Claim Form filed on September 18, 2017, (2017 HCV 02997) the Lyns applied to this court for the discharge and modification of restrictive covenants 2, 4 and 5.

4

On February 27, 2018, by order of the court, a Legal Notice pursuant to the Restrictive Covenant (Discharge and Modification) Rules, 1960, was served by Registered Post on several residents of Upper Montrose Road, including Mrs. Sarah Chin-Jen Hsia and her husband Marvin Gordon Hall, two of the claimants in 2018 HCV 02906 and the registered owner of Lot 9 Block X with civic address number 7 Upper Montrose, registered at Volume 331 Folio 80, inviting objections to the modification of the covenants by the Lyns to be filed with the Registrar of the Supreme Court within 14 days. On March 7, 2018 Mrs. Hsia filed and served objections to the application.

5

While the application was pending, the Lyns began the construction of their approved complex in August 2017. The 1 st claimant through her attorneys, by letter dated May 16, 2018, wrote to the Lyns requesting that they ‘cease and desist’ the construction operations until the matter regarding the modification was resolved.

6

Construction continued.

7

On October 5, 2018 Mrs. Hsia and five other members of the Upper Montrose Road community who had been served with Legal Notices for objection, filed an Amended Fixed Date Claim Form, (2018 HCV 02906) opposing the modification of the covenants and seeking the following orders:

  • 1. A Declaration that the claimants are entitled to the benefit of restrictive covenants numbered 2, 4 and 5 affecting the title of the land comprised on Certificate of Title registered at Volume 394 Folio 3 of the Register Book of Titles and known as 18 Upper Montrose Road, Kingston 6.

  • 2. An injunction restraining the defendants whether by themselves or by their company, officers, representatives, employees and/or agents, contractors and/or workmen, assignees and successors or otherwise howsoever, from continuing construction or any form of development of the land comprised in Volume 394 Folio 3 of the Register Book of Titles and known as 18 Upper Montrose Road, Kingston 6 in breach of the restrictive Covenants attached thereto from which the claimants are entitled to benefit.

  • 3. The defendants whether by themselves or by their company, officers, representatives, employees and/or agent, contractors and/or workmen, assigns and successors or otherwise howsoever, are to demolish, forthwith, the structure constructed on the subject land in so far as it is in breach of the restrictive covenants attached thereto, and/or restore/convert the subject land and/or the structure to a manner in conformity with the restrictive covenants attached thereto.

8

An interim injunction was granted, pursuant to a Notice of Application for Court Orders filed on July 31, 2018 by the Objectors, on December 14, 2018 restraining the Lyns from continuing the construction and development on the land. It also forbade the occupation of the development. It was subsequently extended until the disposal of the matters by the court. In spite of this the Lyns completed the construction of the approved development and it is now occupied by tenants.

THE LYN'S APPLICATION
9

The Lyns by their Fixed Date Claim Form filed September 18, 2017 seek the following orders:

That the restrictive covenants numbered 2, 4 and 5 be modified. They are:

  • 2. Not to subdivide the said land except in accordance with the aforesaid plan or in accordance with a plan approved by the Board under Chapter 26 of the Revised Laws, in which latter case, none of the lots shall be less than half an acre in area.

  • 4. Only one residence shall be erected on any lot of the said land; such residence together with the buildings appurtenant thereto shall cost not less than Eight Hundred Pounds and shall be filled with proper sewer installation and no pit closet shall be erected for use on the said land.

  • 5. No building shall be erected within thirty feet of any road and ten feet of any other boundary.

The modifications being sought are:

  • 2. The land above described shall not be subdivided save and except into lots for the erection of Townhouses and or apartments in accordance with the statutory approvals.

  • 4. No building other than Townhouses and or apartments with the necessary outbuildings appurtenant thereto shall be erected on the said land and such buildings shall be used for no other purpose other than for private residential use.

  • 5. No Townhouse and or apartments house to be erected on the said land shall be erected at a distance of less than Twenty Feet from any road boundary thereof and eight feet of any other boundary save and except that this shall not apply to the Guardroom, Swimming Pool, Gazebo and Garbage receptacle.

THE OBJECTIONS AND THE OBJECTOR'S CLAIM
10

The objections filed by Mrs. Hsia are:

  • 1. The Provisions of section 3(1)(a), (b), (c) and (d) of the Restrictive Covenants (Discharge and Modification) Act do not apply to this case.

  • 2. The Vale Royal subdivision was laid out as an upper-middle class residential scheme more than eighty (80) years ago when the restrictions which the Applicant now seeks to modify were imposed with the clear object of preserving to the owners of the lots in the sub-division certain residential amenities such as the size of the lot, the type and size of dwelling houses with appropriate out-buildings appurtenant thereto and to be occupied therewith to be erected on each lot and the distance of any building or structure from the road and other boundaries so as to ensure the high quality and character of the area.

  • 3. The modifications applied for are likely to interfere substantially with and be detrimental to the comfort and convenience of the occupiers of the adjoining lands and in particular will lead to an increase in traffic and noise because of the potential increase in the number of persons living on the land the subject of this Application.

  • 4. The proposed modification by allowing the land the subject of this Application to have multiple residences thereon, namely TWO (2) townhouses and FOUR APARTMENTS comprised in TWO apartment blocks of TWO STORIES each, including FOURTEEN parking spaces and TWO double garages, with entrance and exit onto Upper Montrose Road, will injure financially the persons owning lands in the surrounding area by changing the density and character of the neighbourhood and thereby depreciating property values.

  • 5. Construction on the land the subject of this Application has already commenced, and provisions for SIX (6) electrical meters are visible from the exterior of the property.

  • 6. The lands in the Vale Royal sub-division were developed so as to comply with the restrictions set out on the titles therefore so Vale Royal which is considered a part of the “Golden Triangle” would develop in the manner envisaged by the city planners.

  • 7. The modifications applied for are not consistent with the further orderly development of the type of neighbourhood of which Vale Royal,...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT