Karlson v Hochberg
| Jurisdiction | British Virgin Islands |
| Judge | Ellis J. |
| Judgment Date | 22 June 2016 |
| Neutral Citation | VG 2016 HC 20 |
| Docket Number | BVIHCV 208 of 2013 |
| Court | High Court (British Virgin Islands) |
| Date | 22 June 2016 |
High Court
Ellis, J.
BVIHCV 208 of 2013
Ms. Nelcia St. Jean of Orion Law, Counsel for the claimant
Ms. Hazel Hannaway — Boreland of Harneys, Counsel for defendant
Property Law - Declaratory Relief — Whether the claimant has a legal right of way — Legal nature of the right of way — Rights associated with the right of way — Whether the claimant acquired a right to park — Prescriptive rights — Whether exercising a right to park on a right of way would obstruct the defendant's access to his property.
The claimant is the registered proprietor of land registered at Parcel Nos. 1 and 2, Block 2235B, West End Registration Section. Both parcels of land have the benefit of a Right of Way from the Public Road over Parcels 9 and 4 Block 2235B, West End Registration Section.
The defendant is the registered proprietor of Parcel 4 Block 2235B, West End Registration Section.
By way of Fixed Date Claim Form, the claimant seeks the following declaratory relief against the defendant:
i. a declaration that the claimant be allowed to enjoy all the benefits of the 16ft Right of Way located on Parcel 4 of Block 2235B, West End Registration Section identified on survey plan CA-2235B-078-T prepared by Michael Potter a surveyor licensed…and approved by the Chief Surveyor on 21st December 2007 which has been declared a Right of Way by the court (the “Right of Way”) including the right to park thereon and for his tenants, invitees, servants, agents or his successors in title or any future purchaser of the Properties and thereon tenants, invitees, servants, agents or his successors in title to also park thereon.
ii. the defendant be enjoined and permanently restrained whether by himself, his servants, agents or otherwise from removing from the Right of Way any vehicles of the claimant, his tenants, invitees, servants agents or his successors in title or any future purchaser of the Properties;
iii. the defendant be enjoined and permanently restrained whether by himself, his servants, agents or otherwise from blocking or obstructing the Right of Way or placing or allowing to be placed in the Right of Way anything restricting, preventing or otherwise interfering with the reasonable enjoyment of the Right of Way by the claimant or his tenants, invitees, servants agents or his successors in title or any future purchaser of the Properties on foot or by motor vehicle at all time and for all purposes and from doing any act whereby the claimant may be hindered in the free use thereof;
iv. an order that provisions be made for costs; and
v. such other order as the Court deems fit.
The defendant opposes the Claim primarily on the basis that the claimant has no legal right to park on the Right of Way. He avers that such parking causes grave inconvenience to himself and his business' clientele thus constituting a public nuisance. Further, he seeks (in the alternative) either an order prohibiting the claimant from parking or causing vehicles to be parked on the Right of Way or that the claimant be mandated to take steps for alternate parking, inclusive of making arrangements for parking in his own property. The claimant also seeks an award of damages for the loss suffered by himself and his clients as a result of the obstruction.
At the trial, the claimant gave evidence on his own behalf. In his witness statement filed on 17th January 2014, the claimant stated that since 1957, all previous owners of the properties have parked on the Right of Way. He further stated that from the date when he purchased the properties in 1987, he has also had the right to park up to two vehicles on the Right of Way. When he purchased the properties there was a wide stone wall between his Property and the defendant's which extended from the ocean across the Right of Way and which was imbedded in the cliff. His properties are located at the dead-end of the Right of Way and there is no other means of accessing his properties. There is also no other viable option reasonably close to his Properties for his guests, tenants or agents to park, so that in order to enjoy his Properties, it is necessary for him, his visitors and any subsequent owners of the Properties to be able to park on the Right of Way.
The claimant goes on to state that after the defendant purchased Parcel 4 in 2003 he built a nine suite hotel on this Parcel. The claimant alleges that during the construction of this unauthorized hotel, the defendant cut into the Right of Way reducing its width to slightly less than 10 ft. However, notwithstanding that the defendant cut into the Right of Way, the claimant contended that it is still wide enough for vehicles to park to one side of the road and not obstruct the flow of foot traffic and the transportation of guests' luggage to and from the hotel. The claimant indicated that whenever he parks on the Right of Way, he is extremely careful to give maximum space for the passage of hotel guests and luggage past his vehicles. In contrast, he contended that on a few occasions the defendant's guests had inadvertently blocked in his vehicle. However, after he phoned or visited their offices, they immediately and politely corrected the situation.
The claimant stated that for the past ten years, he has had a cordial and cooperative relationship with the defendant and his hotel. According to him, the defendant only threatened to revoke his parking privileges and that of his successors in title when the defendant became aware of his intention to sell his properties. He asserts that at no time prior to this has he received any objection (whether orally or in writing) from the defendant or his hotel manager about parking on the Right of Way. When this suddenly became an issue, he tried reasoning with defendant regarding his need to park on the Right of Way but after over ten (10) years of silence the defendant now insists that neither he, nor his visitors or tradesmen of any kind should park there.
However, the claimant later revised this unequivocal assertion when he stated that he had approximately two conversations with the defendant over the past 10 years about this issue. According to him at no time did these conversations become acrimonious; instead, he consistently indicated to defendant that all previous owners have had the right and need to park up to two vehicles on the Right of Way.
The claimant stated that he has been trying to sell his Properties but the defendant's opposition has made it impossible for him to conclude a successful sale. His real estate agent, Pamela Romney, advised him that he had lost a May 2013 sale because of defendant's attitude. The buyer was frightened away because of the parking issue since there is no other option for nearby parking available for the Properties.
When he was cross examined, the claimant testified that he ordinarily resides in Michigan, USA and could not recall being in the Territory in 2013 – 2014. When he was referred to paragraph 6 of his witness statement, he stated that in subsequent conversations with the defendant, he (the defendant) told him that as long as he (the claimant) owns the property, he would have parking privileges but as long as he sold the property, the new owner would not. When he was questioned about the timing of these conversations, the claimant told the Court that it would have been in the spring, earlier than 2015; as soon as the defendant became aware that he was trying to sell the property.
As his cross examination progressed, the claimant later told the Court that it would have been sometime in late 2014. When he was reminded that his witness statement in this action would have been signed in January 2014, the claimant then stated that it would have to have been in 2013, when the defendant learned that he was considering selling the property. He could not recall how these conversations took place but he stated that it would have been through his attorney.
The claimant was then referred to paragraph 10 of the affidavit filed on 17th October 2013, in which he denied ever obstructing the Right of Way and where he stated that there has never been a complaint made about his parking. The claimant reiterated that in the past 20 years, the defendant has never complained about his parking on the Right of Way until sometime in late 2013. He further denied that he ever received a letter from Harneys in 2000 or at any other time. He then went on to testify that until the time when the defendant became aware that he intended to sell the property very early in 2000, (probably 2001, 2002, or 2003) this was the first time that he experienced any problems with the defendant or Ushie (Ursula Mikoleiczik). He then stated that he did not try to sell the property in 2001, 2002 or 2003 that is when objections to the parking stopped. When it was pointed out to him that this was inconsistent with his earlier evidence, he stated unequivocally that somewhere in 2001–2003 all discussions regarding his parking stopped and the defendant learned that he was selling the properties he revoked his parking privileges. When he was further questioned on this issue he told the Court that the issues regarding parking stopped in the early 2000 and only remerged when he was intending to sell the property. He reiterated that the defendant has never written to him or handed him a letter. He simply revoked the parking privileges when he discovered that he was going to sell.
The claimant denied that it was possible for him to park on his own property and instead affirmed that the Right of Way is the only place where he can park his car. He was able to demonstrate the location where he parks his car in Exhibit DK4 a photo. He told the Court that he parks his car near the cliff face in that photo. When he was referred to the report of Systems Engineering...
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