Suzette Millar v Duncan Bay Development Company
| Jurisdiction | Jamaica |
| Judge | Palmer, J |
| Judgment Date | 22 April 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. SU2021CV03550 |
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[2022] JMSC Civ.54
CLAIM NO. SU2021CV03550
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
Registration of Titles Act sections 68, 70 and 71 — Whether the Claimants are bona fide purchasers for value without notice of fraud — Whether the Claimants acted in bad faith in failing to investigate prior transfers and adverse acquisition noted on registered title — Restrictive covenant requiring Claimants to apply for building approval through the 1st Defendants — Whether the 1st Defendant can refuse to process the Claimants' application because of the 2nd Defendant's allegation that its title was cancelled on a fraudulent application for adverse possession — Adverse possessor sold the property to a company that then sold same to the Claimants
Tamiko Smith instructed by Smith, Afflick, Robinson & Partners for the Claimants
Vincent Chen and Makene Brown instructed by Chen Green and Co. for the Defendants
The Claimants, who are spouses, purchased lands comprised in Certificate of Title registered at Volume 1527 Folio 828 of the Register Book of Titles (“the property”) from Puerto Anton Developers Limited (“PADL”) in July 2020. According to the title, the property was transferred in April 2020 to PADL from Le Wei, who acquired the property through adverse possession on August 22, 2019.
There are several restrictive covenants on the title, but two are the subject of contention in this matter. Covenants no. 3 and 14 read:
3. No Building shall be erected on the said land unless:
(a) Comprehensive detailed plans and specifications therefor shall be approved in writing by Duncan Bay Development Company Limited or its successors or assigns (hereinafter referred to as “Duncan Bay”.
(b) Such buildings or constructions shall not exceed twenty-five in height from ground level and shall not be located nearer than fifteen feet from any road boundary nor ten feet from any other boundary unless Duncan Bay's written consent for a lesser distance has been obtained.
(c) Such building excluding any accessory buildings or erections shall have a minimum value of Eight Thousand ($8000) as certified by Duncan Bay.
Plans and specifications for any alteration or improvement to any buildings or erections shall be subject to the prior written approval of Duncan Bay.
14. The said land shall not be transferred unless the transferee shall agree to the provisions from time to time obtaining for the maintenance of public areas in the Duncan Bay Estate.
According to the affidavits of Ms Millar and Mr Pryce, after purchasing the property in 2020, contact was had with the 1 st Defendant, Duncan Bay Development Company Limited (“DBDL”), in March 2021, seeking approval for the building plans in accordance with restrictive covenant no. 3. DBDL responded to indicate that Counsel had contacted it for Melrose Finance Company Incorporated (“MFCI”), who informed them that MFCI were the true owners and the property had been fraudulently transferred. The Claimants' Counsel contacted MFCI's Counsel on the matter and was told they would take action against DBDL if it provided the consent sought according to the covenant. In May 2021, DBDL was contacted in writing by the Claimants' Counsel and sent the US$500 seven-day processing fee relating to the application. When the Trelawny Municipal Corporation was contacted, they advised that DBDL had not made contact regarding the building approval and that, in any event, the application could not be processed without DBDL's stamp of approval affixed.
This failure or refusal of DBDL to complete the assessment as required under the covenant continues to inhibit the Claimants from constructing their house on the property. They state that, but for the interference by MFCI, DBDL would not be hindered in processing the approval and that there is no lawful or justifiable reason for such interference.
Consequently, the Claimants filed a Fixed Date Claim Form seeking orders as follows:
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i. A Declaration that the 1 st Defendant are not impeded in any way from processing the Claimant's application for building approval required under restrictive covenant no. 3 endorsed on the [property].
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ii. A mandatory injunction requiring the 1 st Defendant to process the Claimant's application for building approval and to provide its response to same within seven days from the date hereof.
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iii. In the alternative, an order for Specific Performance requiring the 1 st Defendant to process the Claimant's application for building approval and to provide its response to same within seven days from the date hereof.
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iv. A Declaration that the 2 nd Defendant is purposefully and without legal or justifiable cause obstructing the Claimants from exercising their rights and entitlements as the registered proprietors of the property.
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v. A mandatory injunction requiring the 2 nd Defendant to retract their demand addressed to the 1 st Defendant not to take any steps to approve or consent to the Transfer of the property to the Claimant or to process the Claimant's application for building approval in accordance with restrictive covenant 3 endorsed on the said certificate of title for the property.
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vi. An injunction restraining the 2 nd Defendant whether by itself or its servant and/or agent from interfering with the Claimant's rights and entitlement, in any way, over the property.
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vii. Costs of the Claim to the Claimant.
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viii. Such further or other relief as the Honourable Court deems just.
In response to the claim, an affidavit was filed by Keith Russell, CEO of Ocean Point Limited (“OPL”), the agent for DBDL. As the CEO of OPL, he is familiar with the subdivision known as Duncan Bay Development in the parish of Trelawny. The Lots in the deposited plan are inspected and overseen by the DBDL as part of its obligations under the restrictive covenants endorsed on the relevant Certificates of Title framed to run with the Lots and enure to the benefit of all the Lot owners in the Duncan Bay Development.
Mr Russell says that since 2007 his staff has regularly traversed the lots at Duncan Bay Estates and noted that it did not observe any activity on the property that could amount to trespass or adverse possession; a reference to the basis on which Le Wei claims to have acquired the property. He did not become aware that the property had changed ownership until the 1 st Claimant approached DBDL regarding the intended application. He asserted that the fraud would have come to the attention of the Claimants had they done adequate searches of the registered title and that the rightful proprietor should be restored as the registered owner. He stated that Counsel advised him that the Claimants' Counsel could have traced the title's history through the adverse possession application number ADVP: 2169930 that appears on the face of the Title.
He stated that the Defendants' Attorneys advised him that every purchaser of land must take care to secure for himself a good, sufficient and indefeasible title to the property that the burden of proving the same is on the purchasers. The Defendants sought orders as follows:
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a) The Declarations and Orders sought by the Claimants in their Fixed Date Claim Form filed August 4, 2021 be denied.
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b) An order that the title for the Lot 316 issued to the Claimants Volume 1527 Folio 828 be cancelled.
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c) An order to restore the Cancelled Title for ALL THAT parcel of land part of SILVER SANDS part of DUNCAN BAY formerly known as JOHNSON PEN in the parish of TRELAWNY being the Lot numbered THREE HUNDRED AND SIXTEEN on the plan of part of Duncan Bay aforesaid deposited in the Office of Titles on the 29th day of June, 1972 of the shape and dimensions and butting as appears by the said plan and being part of the land comprised in Certificate of Title registered at Volume 1088 Folio 687.
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d) Costs to the Defendants to be taxed if not sooner agreed.
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e) Such further and/or other relief as the Honourable Court deems just.
On the first date before Court on September 21, 2021, the claim was adjourned to January 26, 2022, allowing the parties to attend mediation and for any further affidavits to be filed. On the adjourned first hearing date, in addition to orders for the filing of submissions, it was ordered as follows:
i. The first hearing of the Fixed Date Claim Form is to be treated as the trial of the matter and heard summarily pursuant to Rule 27.2 (8) of the CPR;
ii. …
There is no substantial factual dispute between the parties. The 1 st Defendant has failed or refused to process the Claimant's application for building approval based on the 2 nd Defendant's assertion that the Claimant is not entitled to the property. I determined that the matter could be suitably dealt with summarily, given that the dispute surrounds the parties' interpretation of the law.
The Court made orders for the Claimants to first file submissions to which the Defendants would respond and that the Claimants had a right to reply to authorities afterwards. As the Defendants raised several issues not raised in the original submissions of the Claimants, it was convenient to address the submissions made on behalf of the Defendants first, then the Claimants' submissions in their entirety afterwards.
On the issue of whether the Claimants are bona fide purchasers for value without notice, the authority of Glenton McFarlane v Hopeton Ferguson [2017] JMSC Civ. 21 was cited for the proposition that for a party to qualify as a bona fide purchaser for value without notice, that party must have given valuable consideration and have acted in good faith. They must also have had no notice of the interest of the former registered...
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