Letter Explaining Lawsuit

Because there has been a lot of scuttlebutt on this lawsuit, Perry’s explanation is being placed here on the Election page for the good of the AGM

Covenant Breach Litigation Review

By Perry Attfield

I recently read some disturbing misrepresentations of the facts being circulated concerning the RBPOA’s ongoing Supreme Court litigation. Since there are quite a number of new residents in the Subdivision that may not be aware of the actual events that required the court action, I thought I would set the record straight here.

As all Lot Owners will be aware (or should be), EVERY Lot in Rainbow Bay has a Covenant attached to the Conveyance which contains Building Restrictions. When purchasers sign the Conveyance to purchase a Lot, they have in fact agreed to abide by the Building Restrictions contained in that Covenant. The Restrictions are rather basic and, for the most part, refer to building setbacks, size, height, etc. First and foremost, the main overriding requirement within the Covenant attached to ALL property conveyances within Rainbow Bay, is that no property owner shall commence constructing a building without first receiving approval from the Rainbow Bay Property Owner’s Association (RBPOA).

When the RBPOA became aware that an unauthorized project had commenced in September 2016, they contacted the Owners of the property immediately and reminded them of the proper procedure for obtaining permission to build in Rainbow Bay. The Owners of the Lot responded by claiming that their lawyers had not informed them of the Covenant attached to their conveyance (they subsequently admitted under oath, in court, that this initial claim was untrue and that they consciously decided to build without seeking RBPOA approval. {Trial Transcript Day 2, Pages 43 to 48}).

Despite numerous requests by the RBPOA, and the lawyers representing the Association, the Owners of that Lot refused to halt the construction process until they had received Building Approval from the RBPOA. Their knowledgeable contractors, who were also fully aware the Covenant was being breached, continued to build at the direction of the Owners and were also contacted by the Association lawyers. After the RBPOA’s Building Control Officer managed to glimpse a set of building plans, the Owners were informed that the building as drawn, and for which foundations had already been poured, would be 6ft higher than the Restrictions allow for. Rather than trying to comply with the height restriction, the Owner had his (new) contractor raise the height of the floor slab (which shouldn’t even have been constructed) by 3 additional feet, taking the new height breech up to 9ft! If it wasn’t apparent enough that the Owners had no intention of adhering to the Covenant Restrictions, this act of defiance cemented that conclusion.

There are two main functions of the Rainbow Bay Board, as set out in the By-laws. One is to maintain and improve infrastructure and the other is to ensure compliance with the Covenant Restrictions. In accordance with this mandate, and after having exhausted all other avenues, the Board felt there was no other way to bring the unauthorized construction on this property to a halt but to apply to the Courts for an Injunction. The Board presented this recommendation to the Annual General Meeting in 2017 and the action was unanimously supported by all in attendance. The Injunction to halt construction was subsequently granted by the Supreme Court but, rather than agree to modify their building plans and submit revised plans for RBPOA Approval, the Owners decided to fight the Injunction in Court.

When it was apparent the legal bills were mounting, in 2019 the Board again presented the situation at the Annual General Meeting and, once again, all those in attendance agreed that it was necessary to continue to pursue whatever legal means were available to defend the Association’s right to enforce the Covenant. Over the ensuing years, the tiresome court appearances have been many with interminable court-initiated delays. Due to the pandemic, the last two appearances had to be performed remotely and the last court proceeding was finally completed in October of 2020. Fourteen months later and the Justice has still not delivered her ruling in this matter and everything currently remains at a standstill. It has now been over 5 years since construction was started on the unapproved building.

So … those are the facts surrounding the current Supreme Court Litigation. There is one question that continually perplexes me and I have yet to hear an answer that I can make sense of. With literally thousands of acres of available land in Eleuthera, why would anyone who doesn’t want to agree to follow any rules, knowingly buy a Lot, build a house and live in just about the only Subdivision on the island that has some Restrictions to adhere to?