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Palmyra Parent Firm Deemed A Squatter
Published: Friday | May 10, 20131 Comment
A section of Palmyra Resort & Spa while it was under construction. - File
A court has deemed Resort Properties Limited (RPL), parent company of Palmyra Resort and Spa to be a squatter at The Palmyra, a condominium resort in Rose Hall, St James, and has ordered it to vacate the premises by June 7.
Resident Magistrate Natalie Hart-Hines also warned that if it fails to give up possession, a warrant will be issued requiring a bailiff to give possession toNational Commercial Bank (NCB) and RBC Royal Bank, which asked the court to grant an order evicting Resort Properties on the basis of its continued trespass. The matter was last heard on April 25.
The action was brought after receiver and manager of The Palmyra, Kenneth Tomlinson, and the banks discovered that in February 2011, in breach of covenant in its mortgage to the banks, The Palmyra leased five strata lots for a term of 10 years, to RPL, its parent company, without the agreement and written consent of the banks.
The court heard that the development of the Palmyra Resort was financed in part by a US$88-million syndicated loan from NCB and RBC Royal Bank, which was secured by a mortgage of the land where the resort is built and a collateral debenture.
As the development took form and a strata plan was approved, the mortgaged land was splintered and titles were issued for the various lots that made up the plan, according to the facts of the case outlined by the resident magistrate.
The new strata lots were all subject to the mortgage and it was agreed that the loan would be repaid through proceeds of the sale of the strata lots.
However, over time, construc-tion and completion of the resort was delayed and the sale of units fell below target, and Palmyra became unable to meet the repayment terms stipulated in the mortgage and the debenture. The banks said that the last payment they received was in or about December 2010.
The banks further contended that up to May 2011 Palmyra Resort failed to negotiate terms to restructure its debt, and so on July 23, 2011 they appointed Tomlinson as receiver and manager of the business.
The banks asserted that the leases created after the mortgage and without their consent were invalid and that Resort Properties had no legitimate interest in the units, which included the Palmyra Clubhouse.
On September 1, 2011, Resort Properties was served with notice to quit and deliver up possession of the five units, but it failed to do so within the time stipulated and "is now trespassing on these lots," the banks said.
Refusing payment
According to the document outlining the reasons for the judgment, the resident magistrate went on to note that Resort Properties sought to legitimise its tenancies with the banks by paying rental for its occupation of the Clubhouse, but the receiver refused to accept payment.
The defendant, Resort Properties, denied that it was a trespasser. Its director, Robert Trotta, who is also a director of Palmyra, contended that the banks must be taken to have impliedly consented to the leases.
Resident Magistrate Hart-Hines found that there was some doubt as to whether the purported tenancy agreements were genuine agreements creating a tenancy. "It seems to be an afterthought, signed only in February 2011, notwithstanding occupation of the property since 2009," she said.
In addition, Hart-Hines said Trotta, under cross-examination, admitted that he never mentioned the tenancies to the banks. "The court finds this quite odd," she said.
Hart-Hines also held that Resort Properties could have adduced more evidence to confirm that moneys were in fact paid over to the receiver as rent, in order to substantiate the position that there was an existing tenancy arrangement between the banks and itself.
As to whether the banks took notice of Resort Properties' occupancy from late 2009 to early February 2011, "the court finds that the banks' representatives did not seem to appreciate what was happening on the ground and did not appreciate RPL's occupation of units as residences for staff."
Hart-Hines said that even if the banks' representatives saw the RPL staff members on site, they may have thought it incidental to the carrying out of their marketing functions. However, she said there was no evidence to suggest that the banks' representatives would have had personal knowledge that four of the five units, the subject of the legal action, were being used by RPL for residential purposes.
Squatter on the premises
The magistrate found that the receiver/manager's refusal to accept rental cheques from RPL "is sufficient to indicate that there was no agreement or acquiescence of the defendant's continued occupation of the premises after February 2011."
Hart-Hines ruled that RPL "is not afforded any protection under the Rent Restriction Act and would, indeed, be regarded as a squatter on the premises. It is accepted that some of the functions carried out by RPL have ceased and it is clear that the plaintiffs (the banks) did not accept RPL as a tenant and it should be regarded as a squatter."
The magistrate said that "although the court is not required to consider hardship, because RPL is a squatter and hardship is a consideration where the Rent Restriction Act applies (and it does not apply in this case), the court finds that hardship would in fact lie with (the) plaintiffs since the mortgage has not been serviced for the last two years."
On these bases, she ordered RPL to vacate the premises on or before Friday, June 7.
Published: Friday | May 10, 20131 Comment
A section of Palmyra Resort & Spa while it was under construction. - File
A court has deemed Resort Properties Limited (RPL), parent company of Palmyra Resort and Spa to be a squatter at The Palmyra, a condominium resort in Rose Hall, St James, and has ordered it to vacate the premises by June 7.
Resident Magistrate Natalie Hart-Hines also warned that if it fails to give up possession, a warrant will be issued requiring a bailiff to give possession toNational Commercial Bank (NCB) and RBC Royal Bank, which asked the court to grant an order evicting Resort Properties on the basis of its continued trespass. The matter was last heard on April 25.
The action was brought after receiver and manager of The Palmyra, Kenneth Tomlinson, and the banks discovered that in February 2011, in breach of covenant in its mortgage to the banks, The Palmyra leased five strata lots for a term of 10 years, to RPL, its parent company, without the agreement and written consent of the banks.
The court heard that the development of the Palmyra Resort was financed in part by a US$88-million syndicated loan from NCB and RBC Royal Bank, which was secured by a mortgage of the land where the resort is built and a collateral debenture.
As the development took form and a strata plan was approved, the mortgaged land was splintered and titles were issued for the various lots that made up the plan, according to the facts of the case outlined by the resident magistrate.
The new strata lots were all subject to the mortgage and it was agreed that the loan would be repaid through proceeds of the sale of the strata lots.
However, over time, construc-tion and completion of the resort was delayed and the sale of units fell below target, and Palmyra became unable to meet the repayment terms stipulated in the mortgage and the debenture. The banks said that the last payment they received was in or about December 2010.
The banks further contended that up to May 2011 Palmyra Resort failed to negotiate terms to restructure its debt, and so on July 23, 2011 they appointed Tomlinson as receiver and manager of the business.
The banks asserted that the leases created after the mortgage and without their consent were invalid and that Resort Properties had no legitimate interest in the units, which included the Palmyra Clubhouse.
On September 1, 2011, Resort Properties was served with notice to quit and deliver up possession of the five units, but it failed to do so within the time stipulated and "is now trespassing on these lots," the banks said.
Refusing payment
According to the document outlining the reasons for the judgment, the resident magistrate went on to note that Resort Properties sought to legitimise its tenancies with the banks by paying rental for its occupation of the Clubhouse, but the receiver refused to accept payment.
The defendant, Resort Properties, denied that it was a trespasser. Its director, Robert Trotta, who is also a director of Palmyra, contended that the banks must be taken to have impliedly consented to the leases.
Resident Magistrate Hart-Hines found that there was some doubt as to whether the purported tenancy agreements were genuine agreements creating a tenancy. "It seems to be an afterthought, signed only in February 2011, notwithstanding occupation of the property since 2009," she said.
In addition, Hart-Hines said Trotta, under cross-examination, admitted that he never mentioned the tenancies to the banks. "The court finds this quite odd," she said.
Hart-Hines also held that Resort Properties could have adduced more evidence to confirm that moneys were in fact paid over to the receiver as rent, in order to substantiate the position that there was an existing tenancy arrangement between the banks and itself.
As to whether the banks took notice of Resort Properties' occupancy from late 2009 to early February 2011, "the court finds that the banks' representatives did not seem to appreciate what was happening on the ground and did not appreciate RPL's occupation of units as residences for staff."
Hart-Hines said that even if the banks' representatives saw the RPL staff members on site, they may have thought it incidental to the carrying out of their marketing functions. However, she said there was no evidence to suggest that the banks' representatives would have had personal knowledge that four of the five units, the subject of the legal action, were being used by RPL for residential purposes.
Squatter on the premises
The magistrate found that the receiver/manager's refusal to accept rental cheques from RPL "is sufficient to indicate that there was no agreement or acquiescence of the defendant's continued occupation of the premises after February 2011."
Hart-Hines ruled that RPL "is not afforded any protection under the Rent Restriction Act and would, indeed, be regarded as a squatter on the premises. It is accepted that some of the functions carried out by RPL have ceased and it is clear that the plaintiffs (the banks) did not accept RPL as a tenant and it should be regarded as a squatter."
The magistrate said that "although the court is not required to consider hardship, because RPL is a squatter and hardship is a consideration where the Rent Restriction Act applies (and it does not apply in this case), the court finds that hardship would in fact lie with (the) plaintiffs since the mortgage has not been serviced for the last two years."
On these bases, she ordered RPL to vacate the premises on or before Friday, June 7.
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