In the first part of this two-part series, we discussed that there are different legal regimes around the prohibition of Short-term Rentals (“STRs”), and we zoned in on the prohibition of STRs in strata communities (communities governed by the Registration (Strata Titles) Act). This second part, will now focus on the prohibition of STRs in non-strata communities, the legal structures of which vary.  

Long awaited shared community legislation 

Legislation to regulate communities such as housing schemes, townhouse communities, or other subdivisions that share common property and amenities, that do not fall under the Registration (Strata Titles) Act (collectively, “Shared Communities”), is long overdue.  The legal structures of Shared Communities vary widely, and have been largely dependent on the developer who creates them. Common legal features of Shared Communities include:-

  1. 1. Restrictive Covenants in common, whereby the titles in the development may share similar covenants that impose restrictions on how an owner may use his/her lot.
  2. 2. A Homeowners Agreement, which all owners or purchasers sign, and thereby, agree to abide by certain rules, regulations, and procedures to govern and maintain the community.
  3. 3. A Homeowners Association (“HOA”) incorporated under the Companies Act, which may have the owners or purchasers as its members, and which may be established by, and a party to, the Homeowners Agreement, as the entity responsible for enforcing its terms against its members.
  4. 4. A combination of the above.
  5. 5. A group of owners who come together to form an association to govern the community based on rules that they decide on, that may or may not be a legal entity.
  6. 6. No structure at all.

It is hoped that legislation will be passed to streamline or standardise how these different Shared Communities operate, particularly where the Shared Community has no structure at all, or is an association that is not a legal entity, and is, therefore, incapable of suing or being sued. The legislation is also expected to appoint a statutory body with responsibility for oversight of these Shared Communities, to make enforcement of their rules and regulations less onerous and litigious. 

Until such legislation is passed, where the legal structure governing a Shared Community does not have sufficient teeth, issues such as non-payment of maintenance fees, and owners engaging in activities that run contrary to the rules, may go unresolved. 

Strength to stop STRs

Ultimately, the strength or teeth of the Shared Community’s legal structure will determine whether or not it is in a position to legally prohibit STRs. Recently, the legal structure of a Shared Community in Hope Pastures was tested in a matter before the Supreme Court of Jamaica, which considered whether or not to grant an injunction prohibiting an owner from allowing his/her property to be used as a STR. Though the written judgement was not available up to the time of writing this article, it has been surmised that the injunction was granted on the basis that the titles for the lots in the said Shared Community are endorsed with restrictive covenants which prohibit the properties from being used for purposes other than residential purposes. The writer, took the liberty of pulling a copy of a title to one of the lots on the same street of the property to which the judgement relates, and found that the covenants in question read:-

“10. No building other than one private dwelling house with the appropriate out-buildings shall be erected or permitted on the said land and the said dwelling house shall be used for residential purposes only. 11. No building on the said land shall at an(y) time be used for the purposes of a Shop, Club, School, Chapel or Church or Nursing Home or for Racing Stables and no trade or business whatsoever shall be carried on upon the said land or any part thereof.”

The ruling of the Supreme Court of Jamaica, to grant the injunction, seems, therefore, to be in line with the position of the Commission of Strata Corporations and the Privy Council case of O’Connor (Senior) & Others v the Proprietors Strata Plan No. 51 [2017] UKPC 45, an appeal from the Turks & Caicos Islands, the English case of Caradon District Council v Paton (2001) 33 HLR 34, and the Australian case of Byrne v The Owners of Ceresa River Apartments Strata Plan 5597 [2017] WASCA 104, which all looked at the meaning of “private residence.”

Restrictive covenants reach beyond Shared Communities

It is important to appreciate that restrictive covenants may be placed on titles that are not within a Shared Community. Titles that form part of the same sub-division, but that are not necessarily within a gated or Shared Community may also have restrictive covenants in common. This means that persons who live in standalone homes and who wish to operate STRs may be at the mercy of an owner of another property who is entitled to the benefit of a similar restrictive covenant, even where that other owner is not even on the same street! 

We should also note that restrictive covenants prohibiting the operation of a trade or business, and requiring a property to be used for residential purposes only, are often required to be placed on the titles to a sub-division as a condition of sub-division approval from the planning authorities. The reason for this, is that the planning authorities are desirous of ensuring that those sub-divisions are in keeping with the planning objectives or zoning of a particular area.

What of properties in areas that are zoned “residential”?

The framework, guidelines, and policies for planning and development in various parishes and communities in Jamaica, are set out by Development Orders prepared by the National Environment and Planning Agency (“NEPA”). A Development Order would typically include a plan and related statements that define zones in a given area that are suitable for residential use, commercial use, resort use, conservation, and other uses. The Development Orders enable the Local Planning Authority and/or the Town and Country Planning Authority to regulate land developments within an area through the relevant Municipal Corporations. It remains to be seen whether the classification of STRs as a trade or business, and a use that is inconsistent with “residential purposes only”, will cause Municipal Corporations to opine on whether STRs ought to be allowed in residentially zoned areas.  

With the law around property ownership, development, and planning being as technical as it is, it is imperative that you consult with an experienced and knowledgeable attorney-at-law, on the various restrictions and obligations that your property may be subject to.