$100m Golden Triangle developer escapes ‘rude awakening’ after demolition order overturned

Developer Martin Lyn, who built a $100 million apartment complex in “blatant disregard” for the law in St Andrew’s Golden Triangle, escaped a “rude awakening” with the overturning of a demolition order against the structure, the Court of Appeal said.

“The Lyns could have easily been one of those developers in for a rude awakening, had the outcome of the appeal been different,” said Justice Marva McDonald-Bishop, who wrote the unanimous decision of the three-member panel that heard the appeal last March.

On Friday, McDonald-Bishop read the court’s decision, which is a victory for Lyn and his two children, Melissa and Maxwell, who appealed Justice Judith Pusey’s order that was granted in January 2020.

The judgment opened by noting that the case is an example of the “disturbing and unacceptable feature” of the construction industry in Jamaica, where land developers start construction before getting restrictions on land titles changed in court.

The appeal turned on the type of houses that can be built on a development scheme, similar to what exists at country clubs and housing projects across the island that include agreements known as covenants with restrictions.

The law outlines two essential requirements that must be satisfied for a development scheme to exist – the identification of a defined area of land and evidence that purchasers of part of that land bought from a common owner and, crucially, had knowledge and accepted the restrictions that came with the land.

Pusey sided with the six residents who objected to the Lyns’ development, ruling that the Upper Montrose Road neighbourhood was a single-family residential area and that the Lyns failed to convince the court that the character of the area had changed to facilitate their multi-family development at Lot 18.

She found that there was a defined area to which the restrictive covenants were proved, and that the original title and the ones that followed identified the property as part of the Vale Royal subdivision.

The lower court’s decision meant that residents were entitled to the protection of their property rights, especially after the judge upheld the validity of the restrictive covenants and their applicability to the Lyns’ property.

RULING BASED ON ‘ERRORS OF LAW’

But the Court of Appeal said it had to intervene and set aside the demolition order after determining that Pusey exercised her discretion “based on some errors of law, misunderstanding of the evidence, and inferences that particular facts existed that are shown to be demonstrably wrong”.

The judges upheld the finding that there was a defined land area but said Pusey did not have enough evidence before her to show that the purchasers, since the land was subdivided in 1927, including the Lyns, had knowledge of and accepted a common set of community rules.

This is despite similar restrictions on the titles of the Lyns, and the residents.

After tracing the ownership of the residents and the developers’ lots, the court concluded that Pusey was “not correct” to rule that there was a common vendor because “there were unexplained or unresolved gaps in the evidence regarding the history of ownership and devolution of all the lots in question to the parties”.

“Once there is no common vendor, there cannot be a scheme,” argued McDonald-Bishop, adding that, even if there was one, “the mere fact that land is divided into lots and sold by a common vendor with similar covenants is not conclusive that a scheme exists”.

But, even with that, the appeal court had to consider if there was evidence of an intention to create a scheme which imposed the burden on all lot owners to enforce the restrictions.

Evidence to prove that would come from the sales of the lots, the first of which took place over 90 years ago, but neither the Lyns nor the residents tendered any such evidence before Pusey on the intention of the vendor or the common vendor.

Still, it was open to Pusey to draw the likely intent of the vendors using what was submitted to her court – the 1927 subdivision plan, the parent title and the titles of the parties in dispute, but there was nothing in them to address the question of intent, McDonald-Bishop argued.

McDonald-Bishop also said the “mere endorsements” of the relevant covenants on the parent title for the Vale Royal subdivision and on the parties’ certificates of title, standing alone, are insufficient to satisfy the requirement.

“Therefore, the absence of crucial evidence satisfying this fundamental requirement would have been fatal to the respondents’ (residents’) case in the court below as it is to their case on appeal,” the judge wrote in the 38-page opinion.

“I have seen nothing in the evidence presented before the learned judge (Pusey) from which a court could properly infer the existence of an agreement importing reciprocity of obligation and benefit needed for the establishment of a scheme,” said McDonald-Bishop.

‘BLATANT DISREGARD FOR THE LAW’

As a result, the demolition order could not stand, even as McDonald-Bishop used strong language to condemn the actions of the Lyns in continuing construction, despite the application to the court in 2017 to modify the restrictions, objections filed by the residents in July 2018, and the subsequent court injunction to stop the works until the matters were decided.

“Despite what I would view as the Lyns’ blatant disregard for the law in constructing their development in breach of the restrictive covenants affecting their property, this court has no option but to allow the appeal from the respondents’ claim, in the face of the applicable law,” the senior appeal court judge said.

The Court of Appeal upheld the ruling that denied the Lyns’ application for a modification of the restrictive covenants.

The Kingston and St Andrew Municipal Corporation (KSAMC) approved the building permit in April 2017, on the condition that the developers apply to the courts to get the three of five restrictions changed. Construction started in August that year and the application to the court, a month later.

The residents filed their objection on March 7, 2018. They got an injunction to stop the construction on December 14, 2018 but, by then, the apartment complex was almost completed and occupation started.

The covenants on the title restrict the owners of the property from subdividing it, with one exception: constructing more than one residence, and dictate the minimum distance that must be between the dwelling and the road and boundaries.

The developers were represented by King’s Counsel Michael Hylton, of the law firm Hylton Powell.

The six residents are Sarah Chin-Jen Hsia, her husband Marvin Gordon Hall, Marcus Handal, Una Pearl Witter and Brenda Rose Francis.

Retired Justice Henderson Emanuel Downer, who was the sixth person, died in January.

Their lead attorney is Emile Leiba from the law firm DunnCox.

Leiba said the Court of Appeal’s decision was “balanced for both sides”, even as he noted that issues with the breaches still need to be settled.

“The restrictive covenants remain on the titles to the property. That has not been disturbed …It is now for the developer to take the necessary steps to see if his development can be regularised”.

That step requires engagement with the KSAMC, which, itself and the National Environment and Planning Agency have been the subjects of strong judicial reprimands over their lack of oversight in ensuring developers adhere to permits.

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