Long et Al v Stackler

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Bertrand, J.
• Judgment Date: 30 January 1989
• Neutral Citation: VG 1989 HC 3
• Docket Number: Civil Suit no. 146A of 1985
• Date: 30 January 1989

High Court

Bertrand, J.

Civil Suit no. 146A of 1985

Long et al

and

Stackler

Appearances:

Dr. Ramsohoye Q.C. with Miss Penn for plaintiffs.

Mr. Todman Q.C. with Mr. Webster for defendant.

Real Property - Restrictive covenants — Whether defendant breached covenants restricting use of property for commercial purposes — Alleged destruction of resale value of property and severe loss, inconvenience and damage suffered by plaintiff — No finding of breaches of covenant — Case against defendant dismissed.

Bertrand, J.

1 The defendant a U.S. Citizen became the registered proprietor of a certain portion of land on the 29th August, 1968 which he bought from the Creques. This portion of land is situate at Leverick Bay in the island of Virgin Gorda in the territory of the British Virgin Islands and was registered in the Registry of Land Titles Vol. E Fol. 39. The memo of transfer which led to the registration of the said portion of land in the defendant's name was signed on the 2nd day of July, 1968. The defendant said in evidence that he and his Engineer/Consultant came up with an attractive development plan that would appeal to would be home buyers, seasonal residents, yacht charterers, restaurant and other users would fit in with the development. On the 26th August, 1968 a proposed master plan of the area was drawn by a licensed engineer H.M. Berning for the defendant Exhibit “C78”. This plan mapped out plots of various sizes and were numbered. The total area of the residential parcels shown was 22.95 acres, and an area for a marina, hotel and beach club including land owners' beach areas and land owners' dinghy haul out area were shown. Roads, culverts, bridges etc. were also indicated on the said plan including contours. The defendant sought the assistance of an attorney and started surveying in accordance with the plan and advertised the land for sale in lots.

2 In August, 1970 permission was sought for condominiums to be built, and on November 20, 1970 permission was given to build one condominium.In that same year proposal for the dinghy haul out area was moved eastward and according to the defendant the site was moved some 125 ft. further east. Final approval of the development plan had not been received before such change was made on another plan drawn by the same Berning on 19th January, 1970 Exhibit “C76” which maps out the proposed hotel site, marina, beach club, beaches and dinghy haul out area. This is shown on Exhibit “C78” as Parcel 36, and is called by the defendant the commercial property.

3 Advertisement was then put out. Some advertisements were submitted as Exhibits but one cannot tell from a first glance to what period such advertisements relates. On looking at Exhibit “C87” I picked out one such advertisement which in my opinion must relate to the period before building commenced and after approval given to build one condominium. Part of this advertisement reads:

“Leon Stackler …… is developing it” (meaning Leverick Bay Estate) “with a very special kind of people in mind …… Leverick Bay Estate is not just a place to escape but an investment in your future — a good investment for more information with-maps, prices, available homesites, write or phone the address below …… or come down and see Leverick Bay Estate for yourself ……. Another creativedevelopment by Leon Stackler. Write him at …… or see our representative on the premises.”

4 Contracts for the sale of parcels of land were entered into with purchasers subject to certain terms and conditions respecting the use of the land and common facilities, payment of purchase price and possession by purchasers of Alien Land Holding Licence. The first four agreements for sale were made in 1971 and one in 1972. These were tendered and admitted in evidence. All five agreements contain the following:- “Restrictions and covenants applicable to Parcels 1 — 36 (but excluding Parcels 1, 2, 3, 35 and 36 which may be used for hotel or other commercial purposes), as shown on ……map dated January 19, 1970.”

5 All agreements were signed by the individuals concerned. They are Exhibits C 132, 134, 135, and 139 in 1971 and Exhibit C 133 in 1972. It would appear that in July, 1973, the defendant decided on an area on Parcel 36 to be used for commercial purposes i.e. part of Parcel 36 was selected for multiple use of condominiums and was divided into 11 parcels numbered 1 — 11 and on part of the remaining portion of Parcel 36 situate South-East of the dinghy haul out area and North and North-West of the 11 parcels, a restaurant was built. It is on that parcel that two alternative routes, one for sewerage and one for fuel and water can be seen. This is all mapped out on Exhibit “C77” drawn by one Anker in July, 1973.

6 The restrictions and covenants applicable to parcels of land bought before July, 1973 excluded Parcel 36 and certain other parcels. There are six such agreements presented as Exhibits in this matter Exhibits C 134, 135, C 132, C 131, C 133 and C 52, the last bearing the date 23rd May, 1973 and when the transfer was signed on 13th December, 1979 the same restrictions and covenants applied. The restrictions and covenants pertaining to lots 1 — 11 of Parcel 36 which were sold, do not exclude parcels 1, 2, 3, 35 and 36. This is obvious since lots 1 — 11 form part of Parcel 36. The original contracts with restriction and covenants respecting parcels of land excluding Parcels 1, 2, 3, 35 and 36 never changed. Lots 1 — 11 include Parcel 3 which originally belonged to Robert and Barbara Anderson. It was in November, 1973 the Andersons purchased lot 3 a subdivision of Parcel 36 on the Berning Plan dated 19th January, 1970 “together with easements and rights set out in the schedule but excepting and reserving the matters, easements and rights excepted or reserved by the said schedule and subject to the restrictive covenants which shall be effective and run with the land until December 31, 1989 …………”

7 In 1974 a Cadastral Survey Plan of the whole of Leverick Bay Estate was made and most if not all of the parcels were re-numbered. The area West and South-West of the eleven plots were subdivided into lots 91, 92, 93, 95, 96, 97, and 81. The area South-East of the eleven plots was numbered Parcel 53. The eleven plots became fourteen parcels and were numbered Parcels 56, 57, 58, 59, 60, 61, 64, 65, 66, 71, 72, 74, 75 and 3. All the above were formerly Parcel 36. Parcel 53 was registered in April 1975 in the name of Leon Marshal Stackler the defendant and the seller of all the parcels of land. Up to the Cadastral Survey Parcel 53 the defendant's name remained in and is part of former Parcel 36. Therefore, the only unsold part of former Parcel 36 became Parcel 53 after the Cadastral Survey and was in 1975 registered in the name of Leon Marshall Stackler the approximate area of which was not determined at the time of registration. From all the exhibits presented to this Court Parcel 53 was the only unsold area from the former Parcel 36, which was excluded from certain restrictive covenants.

8 It is significant to note that the plan attached to the Andersons transfer of title to Lot 3 — Exhibit “C2” dated 30th July, 1973 does not include what is now Parcel 53. And it was on the 2nd December, 1974 after the Cadastral Survey that Parcels 3 was registered in the name of the Andersons in accordance with Land Registry Ordinance No. 8/70. Exhibit “C25” shows an undated transfer to one Madge Hunt of Parcel 50 filled in the Land Registry on 26th April, 1979. This was formerly Parcel 2. Attached to this transfer is a, “description of rights or easements granted, transferred, excepted or reserved, and covenants, restrictions and stipulations to be observed and performed applicable to all parcels (but excluding Parcels 3, 39, 49, 52 through 61 and 63 through 65 which may be used for commercial purposes” ………..Those parcels of land were the same ones excluded from the said restrictions and covenants mentioned earlier. It is therefore highly probable that such exclusions have again appeared after the Cadastral Survey and subdivision of former Parcel 36.

9 Let me say here that the Plan Exhibit “C75” submitted was so illegible that it was difficult to read and understand anything on that map even at a close glance and with a magnifying glass. I had therefore, to obtain personally a more legible and up to date plan of the whole of Leverick Bay Estates and I was only then able to work from there. A study of the map shows that there was a Parcel 3 before Parcel 36 was subdivided. This parcel 3 had now become Parcel 48, Parcel 39 formerly Parcel 35 is now divided into Parcels 84, 85, 86, 87, 88, 89, and 90. Parcel 49 formerly part of Parcel 36 is now divided into Parcels 81, 91, 92, 93, 94, 95, 96, 97, and 98. Parcel 98 does not appear on Cadastral Survey map. Parcels 52 through 61 were formerly part of Parcel 36 and Parcels 52 and 54 do not appear on the Cadastral Survey map. But Parcel 52 is the name of the defendant. Parcels 63 through 65 were formerly part of Parcel 36. Parcel 63 does not appear on the Cadastral Survey map and is not accounted for. Parcel 91 Exhibit “C53” is part of former parcel 36. Parcel 4 Exhibit “C43” was formerly Parcel 34 bounding with Parcel 84 formerly Parcel 35. Parcel 18 Exhibit “C46” was formerly Parcel 7 or 8. Parcel 19 Exhibit “C47” was formerly part of Parcel 30. Parcel 7 Exhibits “C45” and “C73” were formerly Parcel 23. Parcel 8 Exhibit “C72” is now Parcel 18. No date is recorded as to transfer of title to Parcel 6 formerly Parcel 26.

10 From time to time the defendant sold parcels of land to various persons. The plaintiffs claimed that the intention of the defendant was to develop the area 36.78 acres into a quiet attractive exclusive and remote residential with particular attraction for yachtsman in a tranquil retirement community, and the defendant they claimed represented...