On 9 June 2021, the Grand Court handed down its judgment in Cayman Shores Development Ltd and Palm Sunshine Ltd v Registrar of Lands and others (FSD Cause No. 143 of 2019) protecting certain recreational and sporting rights of residential owners at the Britannia development.
In one of the most significant pieces of local litigation heard in the Cayman Islands in many years, the case involved the island's largest property developer on one side and around 200 residential owners at Britannia on the other. The judge had to consider core principles of the jurisdiction's land law in reaching his decision. This judgment provides substantial reassurance to residential owners as to the security of recreational and sporting property rights in the Cayman Islands, and gives valuable guidance on the construction and registration of restrictive agreements and easements.
The Plaintiffs, Cayman Shores Development Ltd and Palm Sunshine Ltd (members of the Dart group of companies, and together referred to for convenience as "Dart Realty"), are the registered owners of a golf course adjoining the Britannia development, together with a nearby hotel and beach resort on Seven Mile Beach (formerly the Hyatt Beach Suites, now Palm Heights). From the early 1990s, the Britannia owners enjoyed rights granted by the original Britannia developer and then owner of the golf course land and beach resort, including the rights to play golf on the golf course, to use the facilities at the beach resort and to use the tennis courts. These recreational rights were recorded in numerous written agreements lodged at the Land Registry, both in favour of the titles to the properties of the Britannia owners (or their Strata corporations) and against the titles to the golf and beach resort land.
Upon acquiring the golf course land and beach resort in 2016, Dart Realty told the Britannia owners that the rights enjoyed by the Britannia owners over the golf course and the beach resort were mere licences and that, as such, the rights did not bind Dart Realty. Dart Realty closed the golf course, taking quantities of turf from the golf course for use at another Dart Realty property, and in 2018 denied the Britannia owners access to the beach club facilities.
In 2019, Dart Realty brought proceedings against the Britannia owners asking the Court to order that the rights to use the golf course, the beach resort and the tennis courts were mere licences and such rights should be deleted from the Land Register. The Britannia owners defended the claim, and brought counterclaims seeking rectification of the Land Register (to the extent necessary) together with damages for the removal of the turf and pumps on the golf course, and damage to the irrigation system.
In his judgment, which followed a two week trial in late 2020, the Honourable Mr Justice Segal has upheld the rights of the Britannia owners to use the golf course and the beach resort, though not the right to use the tennis courts (one of which is now under the Esterley Tibbets Highway).
The key findings are that:
- The written agreements include a restrictive agreement within the meaning of Section 93 of the Registered Land Act. The owner of the golf course and the beach resort may not modify the "facilities as constitute the Rights" (namely the rights to play golf and to use the beach resort) or their location, and may not suspend the exercise of the rights for any purpose other than to carry out repairs and maintenance in respect of the facilities. The agreements were properly registered at the Land Registry and are binding on Dart Realty as owner of the golf course land and beach resort.
- The Britannia owners' right to use the golf course and beach resort granted by the written agreements were properly characterised as easements. Although these were not registered as easements, the Land Register should be rectified to include a reference to the rights as easements.
- Dart Realty substantially interfered with the Britannia owners' rights to play golf by removing large quantities of turf from the golf course causing serious damage, which rendered the course unplayable. The quantum of damages payable by Dart Realty fall to be determined in further proceedings, if not agreed.
The Britannia owners did not satisfy the Court that Dart Realty was responsible for the removal of pumps or damage to the irrigation system and these counterclaims were dismissed.
The judge noted that the numerous witnesses who gave evidence for both Dart Realty and the Britannia owners were truthful and honest, and in the case of the latter noted that their evidence revealed their understandable concerns and strength of feeling about the issues in question.
Colette Wilkins, Nick Dunne and Daisy Boulter of Walkers, together with John Randall QC and Marc Brown of St Philip's Chambers, acted for the participating Britannia owners, working closely alongside Paul Simon of Bodden & Bodden.
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