Female high court judge Justice Agnes Actie has delivered another ruling in a property dispute in the well-to-do area of Lance Aux Epines in the south of the island.
The case surrounded lands that were once owned by businessman Gordon Brathwaite, the man credited with the development of Lance Aux Epines.
The court action was brought by Christine Brathwaite against Anthon and Sharon Antoine to prevent them from using a building as a commercial entity.
The attorneys involved in the case was Jimmy Bristol, KC and Shireen Wilkinson against Deloni Edwards of the law firm of G.E.D Clyne.
In papers filed before the court, Christine Brathwaite was seeking to get the judge to make a declaration, as well as grant an injunction or get damages against the Antoine’s “in respect of an alleged breach of a restrictive covenant” over the lands at Lance Aux Epines.
“The claimant, through a claim filed on 11th November 2020, seeks declarations that the defendants are in breach of an existing restrictive covenant contained in their title, which refrains from using a dwelling house for any other purpose than that of a dwelling house, and prohibits the use of the buildings otherwise except as a private dwelling house and the erection of any apartment building hotel or commercial building.
“The claimant seeks an injunction to restrain the defendants from using the buildings or any part for any other purpose except as a dwelling house and from carrying construction of an apartment building upon the said lots, demolition, and removal of the apartment buildings or in the alternative damages or other relief as the court deems just.”
[42] In support of the change of the character of the neighbourhood, evidence was led by witnesses Leon Daniel and Richardson Donald in support of the defendants.
[43] Witness Leon Daniel, who has lived in L’Ance Aux Epines for eight years, states that he purchased property in L’Ance Aux Epines that was subject to the restrictive covenants and contained a building and a beach house thereon. Leon Daniel asserts that he rented the property to students for years, and states that in his opinion 90% of the L’Ance Aux Epines properties are rented out to students and/or used for commercial purposes. The court is aware that Leon Daniel is a defendant in similar proceedings pending before this court, and that evidence given to support a change in character of the neighbourhood may be self-serving.
[44] Witness Richardson Donald states that he has both residential and commercial properties in L’Ance Aux Epines and that apartments built on his properties have been rented out to students for about nine years.
[45] It is the claimant’s evidence however that the character that has originally existed of the estate has not changed.
The claimant avers that the estate is a mixed development, and that from the outset there were commercial and residential areas. Thus, some lots had covenants, some did not, and some had different covenants. The evidence on behalf of the claimant is that there are approximately two hundred and eighty residential homes in the estate.
[46] The court accepts the claimant’s evidence that the estate is a mixed development which is also acknowledged by the defendants. A situation that existed since the defendants purchased their lots. This is also evidenced by one of the deeds of Richardson Donald which is before the court, which released Richardson Donald from the restrictive covenant of his use of the premises for the purpose of a supermarket.
[47] The case of Robert Bathik v Christine Brathwaite is highly relevant to this case as it dealt with similarly located property in this jurisdiction, the defendant in that case being the claimant in the extant proceedings. It was held therein by Fay J in 2012 at paragraph 37 that:
“The fact that there has been development of parcels of land, and in particular the fact that it is likely that there has been the construction of a number of apartment buildings, since the imposition of the covenant in 1969 does not necessarily mean that there has been a change in the character of the neighbourhood during that time. In considering whether there has been a relevant change, I must give significant weight to what (or rather what the evidence reveals) was intended for L’Anse Aux Epines when the covenant was imposed in 1969. The fact that the parties agree that the sale of the parcels of land at L’Anse Aux Epines was done on an ad hoc basis is highly relevant. The claimant pleads that restrictive covenants were imposed on an inconsistent basis, that numerous lots were sold without restrictive covenants, and that some lots were sold with different restrictive covenants. The consequence of the methodology used by the deceased in imposing restrictive covenants on some but not all of the parcels at L’Anse Aux Epines was that there was a possibility, albeit not a certainty, that there would be development of apartment buildings on some parts of the development but a certainty (assuming that restrictive covenants were obeyed) that there would be a limited number of apartment buildings. It appears to have been the intention of the deceased, and of those that acquired parcels that were subject to the restrictive covenant, that at the very least those parcels would not be developed as apartment buildings. The determination as to which lots were subject to restrictions may have been haphazard but its intention seems to be clear. It does seem likely that there has been some development in breach of the restrictive covenants, but I am not satisfied that such breaches are so extensive as to amount to a change in the neighbourhood that was contemplated at the time the covenant was imposed of the disputed parcel. It seems to be that the neighbourhood has developed, at least substantially, as was contemplated in 1968 when restrictive covenants were imposed on some but not all the parcels.”
[48] The court adopts the above sentiments of Fay J and finds that the defendants have not sufficiently proven that there have been breaches of similar covenants as contained in the first conveyance and the second conveyance, so as to demonstrate a change in the character of the neighbourhood of the premises, with respect to properties forming part of the estate.
[49] The defendants’ main contention is that the covenant is obsolete having regard to the change in character of the neighbourhood. However, although the defendants have identified commercial properties within close proximity to the lot, they have not provided evidence so as to convince this court that a restrictive covenant with respect to those commercial properties applies, as in the covenants to their lots.
Conclusion
[50] The defendants admittedly being in breach of the restrictive covenant and accordingly the issue turns on what is the most equitable relief available to the claimant in light of the breach. The claimant seeks an injunction restricting the use of the buildings for any purpose except as a private house and from carrying on or authorizing or permitting the construction of an apartment building on the said lots or for the demolishment and removal of the said apartment building from the lots or in the alternative, damages.
[51] Where there is a breach of covenant the court may grant a mandatory injunction for the demolition of the building, restricting the rental of the premises. However, a mandatory injunction may be refused if the claimant stood by while work progressed, as in this case. The construction was in the open with no immediate action taken by the claimant as trustee of the estate at the time to obtain an injunction to prevent the commencement of the buildings and the continuous rental of the buildings over an extended period of time.
[52] In the Privy Council decision in Singh v Rainbow Court Townhouses Ltd13 Lord Carnwath referred to the decision of Buckley J in Charrington v Simons & Co Ltd:
“29…“Different considerations may, I think, arise in a case where the court has to consider whether a defendant should be compelled by a mandatory order to remedy a breach of contract which he has committed from those which would arise if the question were whether the court should restrain a threatened breach of contract. To the latter case the principle enunciated by Lord Cairns LC in Doherty v Allman, 3 App Cas 709, 710, 720, may apply in its full rigour. Where a mandatory order is sought the court must consider whether in the circumstances as they exist after the breach a mandatory order, and, if so, what kind of mandatory order, will produce a fair result. In this connection the court must, in my judgment, take into consideration amongst other relevant circumstances the benefit which the order will confer on the plaintiff and the detriment which it will cause the defendant. A plaintiff should not, of course, be deprived of relief to which he is justly entitled merely because it would be disadvantageous to the defendant. On the other hand, he should not be permitted to insist on a form of relief which will confer no appreciable benefit on himself and will be materially detrimental to the defendant.
That passage was cited with approval by Megarry J in Shepherd Homes Ltd v Sandham [1971] Ch 340, 351, where he said: “… although it may not be possible to state in any comprehensive way the grounds upon which the court will refuse to grant a mandatory injunction in such cases at the trial, they at least include the triviality of the damage to the plaintiff and the existence of a disproportion between the detriment that the injunction would inflict on the defendant and the benefit that it would confer on the plaintiff. The basic concept is that of producing a ‘fair result’, and this involves the exercise of a judicial discretion”.”
[53] The evidence is that the buildings were erected within a small locale where the claimant retains ownership of nearby properties. It is also the evidence that the rental of the premises commenced from about 2006 but the court accepts 2012 based on the evidence. The claimant at the time was the executrix of the estate of the deceased who died in 2004 and also the sole beneficial owner of the estate which was vested by assent in 2017. The claimant as a trustee and beneficial owner was under an obligation to be vigilant to observe and enforce her rights. The court does not accept that the claimant was unaware of the breaches having regard the structures of the Hacienda type/apartment buildings, and the rental of the units.
[54] The court is of the view that taking all into consideration, it would be inequitable to grant a mandatory injunction restraining the defendants from continuing the rental of their units and or the demolition of the buildings. The construction from all accounts was done in the open in a relatively small neighbourhood taking into consideration that the claimant owns adjoining properties. It would be unconscionable to allow the claimant as trustee and beneficiary to have sat sit idly and insist on the enforcement of the restrictive covenant without taking an action to mitigate her loss.
[55] The court is of the view that an award of damages would be the most equitable relief in lieu of the breach to compensate for any loss sustained by the claimant as a result of the breach.
ORDER
[56] For the foregoing reasons, it is therefore ordered and declared as follows:
(1) The defendants are in breach of the restrictive covenants contained in deeds of conveyance dated 14th February 1969 between Gordon Brathwaite, Gerald Harvey Lupu, and dated 28th June 1978 between Gordon Brathwaite and Fleming Estates Limited.
(2) Judgment is entered in favour of the claimant against the defendants for breach of covenants contained in deeds of conveyance with damages to be assessed if not agreed.
(3) Failing agreement, directions for the assessment of damages shall be issued pursuant to Part 16.4, upon the application of the claimant.
(4) Prescribed costs agreed in the sum of $7,500.00 to paid to the claimant by the defendants within thirty (30) days of today’s date unless otherwise agreed by the parties.
Agnes Actie
High Court Judge
By the Court
Registrar