Land Use And Property Rights: Lessons From The Cayman Islands Court Of Appeal's Britannia Decision

• Law Firm: Ogier
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Real Estate, Land Law & Agriculture
• Author: Mr James Bergstrom and Sophie Warburton
• Published date: 22 March 2023

On 7 March 2023, the Cayman Islands Court of Appeal delivered its judgment in Cayman Shores Development Ltd et al v Registrar of Lands et al. The Court allowed the appeal by Cayman Shores Development Ltd and another member of the Dart Group, (together, Dart), from the first instance decision of Justice Segal.

Contrary to the first instance decision, it held

• that despite indications on the face of transaction documents that future owners of land would be bound by the original parties' agreements, the instruments in question were not "restrictive agreements" within the meaning of in the Registered Land Law (now the Registered Land Act) (RLA) as it read when they were created
• the Registrar of Lands had not made a mistake Rectification to add "easements" to the incumbrance section of Dart's land registers was not an available remedy and instead the land registers should be rectified by removing the incumbrances altogether

The 193 property owners who were the unsuccessful respondents to the appeal, are currently considering their options. A further appeal to the Privy Council is possible.

Background

This matter has been a long-running and bitterly fought legal battle between Dart, which in 2016 bought the area of land previously known as the Britannia Resort, and the respondents, who are property owners in the neighbouring Britannia Estates.

The dispute arose out of transaction documents dating from 1992 to 2001, between the former owner of the Britannia Resort and the respondents and/or their predecessors.

The transaction documents purported to grant to the respondents or their predecessors rights to play tennis, to play golf and to enjoy facilities. At first instance the judge held that the tennis court rights were extinguished following the construction of a highway over part of the former tennis court site. The appeal, therefore, concerned the remaining rights to play golf and to enjoy facilities (together, the Rights).

On 5 May 2016, following the purchase of the former Britannia Resort, a Dart company wrote to the respondents informing them that plans were being considered for redeveloping the site and offering to make the beach facilities and golf course available for use by them as licensees. They responded that they had property rights (ie they did not need to be granted a licence as they had existing rights).

Rights in dispute

In simple terms, the issue was whether the Rights are property rights (and not merely contractual rights) that are, or...