Sheron Henry v Khahaile Brown

• Jurisdiction: Jamaica
• Judge: M. Jackson J (Ag.)
• Judgment Date: 06 October 2023
• Court: Supreme Court (Jamaica)
• Year: 2023
• Docket Number: CLAIM NO. SU2022CV01606

BETWEEN

Sheron Henry

Claimant

and

Khahaile Brown

1 ^st Defendant

and

Rohan Silvera

2 ^nd Defendant

and

Occupant(s) (of 9 Scotland Drive, College Green, Hope Pastures, Kingston)

3 ^rd Defendant

[2023] JMSC Civ. 209

CLAIM NO. SU2022CV01606

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Civil Procedure: Restrictive Covenant — Advertising Dwelling House for Short — Term Rental on Airbnb Website — Whether Dwelling House is being used for Residential Purposes only — Business or Trade — Nuisance — Whether activities on premises by occupants of the absentee owner amount to private nuisance.

Mr. John Givans instructed by Givans & Company Attorneys-at-Law for the Claimant.

Mr. Arnaldo Brown and Mr. David Stone instructed by Arnaldo Brown & Company Attorneys-at-Law for the Defendants.

IN CHAMBERS

M. Jackson J (Ag.)

INTRODUCTION

1 In this trial, Miss Sheron Henry (“the Claimant”) detailed the basis of her complaint as follows:

“ I bought my property over twenty years ago, and I thought I would have been able to enjoy my home in peace and quiet, but I have been experiencing pure grief and stress because of the actions of the 1 ^st and 2 ^nd Defendant … the 1 ^st and 2 ^nd Defendants do not live at No. 9. Instead they rent out their property on various terms to different persons who have by and large been making life very uncomfortable and unbearable for me … in the vicinity of No. 9 … the … letting of the property as an Airbnb… they set up a website for this purpose … Every day, I wake up fearful for my life because I do not know these strangers in my vicinity… These persons invariably smoke ganja, which affects my sinuses as I suffer from chronic sinusitis. They are usually very noisy, talk loudly with much expletives and blast music from their vehicles. Several Sundays, over 10 persons were at the property smoking ganja, playing loud music with their pants almost falling to the ground around their ankles and coming and going.

They were creating such a disturbance and nuisance that the police had to be called. Three police came to the premises and searched them. They left the following day. As recently as May 1 and May 6, 2022, I was awakened at around 2 – 3 a.m before day by the sound of loud laughing and talking coming from the Defendants' property. The noise disturbance went on for much of the remainder of the early morning, and I had difficulty going back to sleep.

On one occasion, I saw a young man urinating on a palm tree near my property. They keep the garbage bin at the front of the property overflowing and several times refuse litter the area near my property. The behaviour of the Defendants now makes the community a very unpleasant place in which to live. Most evenings when I go home, my mind is uneasy and unsettled, and my head aches because I do not know and fear and dread what I would be encountering near my house from the Defendants'. The activities ..have been going on for several months. If the Defendants are not legally enjoined as a matter of urgency, I fear that their conduct will never cease … and the nuisance and disturbance will drive me either mad or from my home or both and also cause my health, both from stress and sinusitis, to deteriorate… the grief, stress, discomfort and fear to which I am being subject daily cannot be quantified monetarily…”

2 The property, referred to by the Claimant as “No. 9”, is located in the residential gated community, College Green Commons, Hope Pastures, Kingston 6 in the parish of Saint Andrew. It was jointly purchased by Miss Khahaile Brown and Mr Rohan Silvera (“the 1 ^st and 2 ^nd Defendants”) and was registered in their names on March 23, 2019.

3 By her Fixed Date Claim Form filed on May 16, 2022, the Claimant is asking the court to grant the following remedies:

• 1. A Declaration that property at 9 Scotland Drive, College Green, Hope Pastures, Kingston 6, St. Andrew is being used for trade or business contrary to Restrictive Covenant number 11 on the Certificate of Title registered at Volume 1279 Folio 65 of the Register Book of Titles.

• 2. A Declaration that the said property is not being used for residential purposes only, contrary to Restrictive Covenant number 10 on the said Certificate of Title.

• 3. A Declaration that the said Restrictive Covenants enure to the benefit of and is enforceable by the Claimant against the 1 ^st and 2 ^nd Defendants.

• 4. A Declaration that the activities of the 3 ^rd Defendants, who are the short-term occupants/licensees/tenants of the 1 ^st and 2 ^nd defendants, constitute a nuisance actionable by the Claimant and are in breach of Restrictive Covenants number 10 and 11 on the said Certificate of Title.

• 5. An injunction preventing the 1 ^st and 2 ^nd Defendants, whether by or through themselves, their servants and/or their agents, from granting their said property for short-term occupancy, licence or tenancy.

• 6. An injunction preventing the 1 ^st and 2 ^nd Defendants, whether by or through themselves, their servants and/or their agents, from permitting their said property to be used in such a manner as to amount to a nuisance.

• 7. An injunction preventing the 3 ^rd Defendant from carrying out activities on the said property, which can amount to a nuisance.

• 8. Damages for breach of the said Restrictive Covenants.

• 9. Damages for nuisance, income, discomfort, distress and annoyance.

4 The relevant Covenants which anchor the Claimant's claim and are endorsed on her Certificate of Title, registered at Volume 1279 and Folio 79, and the Defendants' Certificate of Title, registered at Volume 1279 and Folio 65, and the Parent Title registered at Volume 1268, and Folio 557 provide:

“ The restrictive covenants are set out hereunder shall run with the land above-described (hereinafter called ‘the said land’ and shall bind as well the registered owner proprietor, his heirs personal representative and transfers and the registered for the time being of the lands or any portion thereof now or formerly comprised in Certificate of Title registered at Volume 1268 and Folio 557.

10. No building other than one private dwelling house with the appropriate out-buildings shall be erected or permitted on the said land, and the dwelling house shall be used for residential purposes only.

11. No building on the said land shall at ant (sic) time be used for the purpose of a Shop, Club, School, Chapel or church, or Nursing Home or for Racing Stables and no trade or business whatsoever shall be carried on upon the said land or any part thereof.”

5 The 1 ^st and 2 ^nd Defendants stand in strong opposition to the claim and have described it as a crusade against them aimed at interfering with their constitutional rights to own property, freedom of association, community, and the right to the enjoyment of their property.

6 It is necessary to state that the Claim referred to a 3 ^rd Defendant as Occupants of premises Number 9 Scotland Drive. These persons did not participate in the proceedings, and neither were served with any originating documents. I will not make any order against them or include them in the discussion.

The Issues

7 This trial raises important legal issues in relation to the rights of the parties, as well as that of other property owners and residents in these residential gated communities. The determination of these legal issues will, of necessity, require an assessment of the law surrounding Private Nuisance and the operation of Restrictive Covenants.

8 , therefore, consider the following two issues to be determinative of this claim:

• (i) Whether the 1 ^st and 2 ^nd Defendants' use of their property is in breach of Restrictive Covenants 10 and 11; and

• (ii) Whether the acts of occupiers, guests, and/or visitors of the 1 ^st and 2 ^nd Defendants amount to acts of nuisance?

9 To succeed in this claim, the Claimant must establish on a balance of probabilities that the 1 ^st and 2 ^nd Defendants' and or their occupants' use of their property conflicts with Restrictive Covenants 10 and 11 and that the breach was an unreasonable use of the land for which a claim in private nuisance has arisen.

The Evidence in Summary

10 The parties' affidavit evidence and accompanying documentary evidence stand as their evidence in chief. The Claimant was cross-examined. The 1 ^st and 2 ^nd Defendants were not. Most notably, neither party called any independent witnesses to support their account.

The Claimant's Evidence

11 The Claimant purchased her property in the residential gated community in March 1995, over twenty-eight years ago. The 1 ^st and 2 ^nd Defendants purchased their property in 2019 but have never lived or stayed there.

12 The College Green Commons is managed by the College Green Citizens Association (“the Association”). The Claimant is a member of the executive of this Association. The property owners have signed an agreement which allows the executive of the Association to carry out its mandate and uphold the Covenants that run with the land. The owners signed an agreement through the Association that none of the private dwelling houses on the land should be rented for short-term rentals as Airbnb. The Association passed the formal resolution giving effect to that agreement on March 10, 2020. The 1 ^st and 2 ^nd Defendants were involved in the process.

13 The owners and occupants share certain common areas. These include the entrance, gateway, outer boundaries, and walkways. All visitors and or guests, as well as their vehicles, are recorded by the security guard in a logbook before entry onto the property is permitted.

14 The 1 ^st and 2 ^nd Defendants initially rented their property to a popular local entertainer for about a year. After the entertainer moved, they began listing the dwelling house for short-term rentals via an internet booking agency: https://www.airbnb.c.uk/rooms/4835166. The property was advertised as having two sets of accommodations which can...