Half Moon Bay Home Owners Co Ltd v Platinum Properties Inc
EASTERN CARIBBEAN SUPREME COURT
FERDERATION OF SAINT CHRISTOPHER AND NEVIS
IN THE HIGH COURT OF JUSTICE
SAINT CHRISTOPHER CIRCUIT
CLAIM NO. SKBHCV012/0156
HALF MOON BAY HOME OWNERS COMPANY LIMITED
PLATINUM PROPERTIES INC
Mr Damian Kelsick and Ms Keisha Spence of Kelsick Wilkin and Ferdinand for the
Mr Fitzroy Eddy for the Defendant
2013: May 02;
 THOMAS, J. (AG): Half Moon Bay Home Owners Company Limited filed a claim
form on 24th April, 2012 seeking the following declarations:
(a) That upon the true construction of the wording of Easement A (ii) – noted
on the defendant’s Certificate of Title, the claimant can lawfully disconnect
or otherwise deny Lot 14 of the Half Moon Bay Villa Development use of
the sewage system of the development.
(b) Also, the claimant claims the sum of US$11,285.06 being the arrears for
maintenance fees for the period 31st October, 2009 to 3rd January 2012
owed to the Defendant by the claimant.
(c) Interest on the said arrears for maintenance fees of US$11,285.06 at such
rate and for such period as the court may think fit pursuant to the powers
conferred by section 29 of the Eastern Caribbean Supreme Court (St.
Christopher and Nevis Act), Cap. 3.11.
(d) Costs, and
(e) Such further or other relief as the Honourable Court may deem fit.
STATEMENT OF CLAIM
 In its Statement of Claim Half Moon Bay outlines its relationship with Half Moon
Bay Villa Development as being its management company. And further the
defendant, Platinum Development Inc. (“Platinum”) is owner of Lot 14 thereof.
 The claimant avers that because of a certain easement endorsed on the
defendant’s Certificate of Title, certain fees are payable and which the defendant
has failed to pay despite several requests and demands.
 It is the averment of the defendant that by virtue of Easement A(i) and (ii) of the
Easements of Half Moon Bay Villa Development endorsed on the Certificate of
Title that it has certain rights to go pass over the roads, paths and walkways of the
said development and to use the sewage system.
 It is the further averment of the defendant that it has no access to its property via
any roads, paths and walkways of the Half Moon Bay Villa Development. It is also
denied that it owes the fees claimed and contends that for the period in issue,
being October 31, 2009 to January 3, 2012, it was not the registered proprietor.
 Accordingly, the defendant denies that the claimant is entitled to the reliefs sought
and for “clarity” and the defendant further denies that the claimant is entitled to the
 By way of counter claim the defendant seeks the following
(i) A Declaration that the claimant [defendant by counterclaim] provide to the
defendant [claimant by counterclaim] proof that it is the management
company provided for pursuant to the Easement of Half Moon Bay Villa
(ii) A Declaration that the claimant [defendant by counterclaim] be prohibited
from requiring the defendant [claimant in counterclaim] from becoming
shareholders and or members of the claimant [defendant by
(iii) A Declaration that the claimant [defendant by counterclaim] be prohibited
from requiring the defendant [claimant by counterclaim] to name the
management company as loss payee in respect of claims for loss or
damage to insurable structures of the defendant [claimant by
(iv) A Declaration as to what charges, if any that Half Moon Bay Limited could
levy on the defendant’s [claimant by counterclaim] property;
(v) An injunction restraining the claimant [defendant by counterclaim] by itself
or by its servants or agents or otherwise from disconnecting access to
sewer and or water;
(vi) Costs of this action; and
(vii) Such further and other relief as this Honourable Court deems just.
 Pleaded at paragraph 17 of the said counterclaim is the following:
“17. In consequence of these matters, the defendant [claimant by
counterclaim] has been greatly disturbed in the enjoyment of its
property and it has been subjected to much inconvenience and
discomfort causing the defendant [claimant by counterclaim] loss
Defence to Counterclaim
 In respect to paragraph 15(1) of the defence and counterclaim Half Moon Bay
Home Owners Company Limited avers that: “by letter dated August 1, 2005 Half
Moon Bay Limited turned over its obligations and duties in relation to Half Moon
Bay Villas to Half Moon Bay Home Owners Company Limited, the defendant by
virtue of the counterclaim herein”.
 With respect to paragraphs 15(ii) and (iii) of the counterclaim the defendant
contends that it never actually insisted that the claimant become a shareholder
and/or member of Half Moon Bay Home Owners Company. Further, that despite
the provisions of the Half Moon Bay Villas standard maintenance agreement it has
never insisted on requiring the claimant names it as loss payee in respect to any
loss or damages to insurable structures of the claimant’s property.
 As regards to paragraph 15 (iv) of the counterclaim, the defendant says that the
Half Moon Bay Standard Maintenance Agreement governs the process of levying
maintenance fee and the amount of fees charged in respect of each villa at Half
Moon Bay Villa Development.
 Finally at paragraph 5 of its defence to counterclaim the defendant denies it
caused, contributed to or is responsible for any or any alleged disturbance in the
claimant’s enjoyment of its property.
 Scott Jaynes in his witness statement says that he had been appointed President
of Half Moon Bay Home Owners Association by the company’s Board of Directors.
 Scott Jaynes explains the process of easements and covenants being noted on
the Certificate of Title issued under the Title by Registration Act with respect to
each unit owner, and the right thereunder. The witness explains further that the
defendant, Platinum Properties Inc. is owner of unit 14 with the easements and
covenants noted as aforesaid. And a further notation on the Certificate of Titles
concerning the “failure by the [owners] of their successors to pay the maintenance
cost and the legal consequences thereof to the unit owners.
 The Standard Maintenance Agreement to which each unit is required to be a party
in order that the rights and easements granted is elaborated by the witness. And
he further explains that the exercise of the rights is conditional on the payment, by
the purchaser or his successor in title, of charges to the management company.
 The basis of the maintenance fees is next explained by the witness and further
with respect to a two-bedroom unit the see if US$913.00 per quarter which was
adjusted to US$1245.00. Such fees apply unit 14 and owed by the defendant.
 At paragraph 17 the evidence is as follows:
“17. A review of the financial records of the claimant shows that the
owner of Villa No. 14 had not paid any maintenance fees for the
period 31st October, 2009 to 3rd January 2012. The amount
outstanding for the said period is US$11,285.06”.
 In further evidence the witness details the efforts made to be owed by the
 Under cross-examination Scott Jaynes testified, in relation to paragraph 17 of his
witness statement, that as of October 31, 2009 Platinum was not the owner prior
to that. He went on to say that we bill the personal owner and when we found out
we changed it to Platinum. He continued: “Platinumn had to pay prior to
September 6, 2009. We were never informed of the change of the current owner”.
The witness ended by saying that it was not known when to start billing Platinum.
 With respect to paragraph 7 of his witness statement Scott Jaynes testified that he
had no idea as to where the maintenance agreement between Platinum and Half
Moon Bay might be.
 As regards to the road in the development Scott Jaynes explained that there is no
restricted access and that the roads are all public roads doe the Half Moon Bay
Development but they were not assigned with the villas.
 On being cross-examined in relation to paragraph 4 of his witness statement, Scott
Jaynes said that he has a right to charge fees prior to August 6, 2010 as it was not
known when the transfer took place as they were never advised as to the new
 In giving further evidence about the roads, the witness said as follows: “Villa #14
faces the road. It faces Half Moon Bay Road. It is a public road. The owner can
access the property. It is a very steep hill-side. There is no direct access to villa
 In her witness statement Anessa Hazelle says she is the accountant at Half Moon
Bay Home Owners Company Limited, being the property management company
responsible for the day-to-day operations of Half Moon bay Development.
 In further evidence the witness detailed her responsibilities as the accountant,
includes the sending of invoices to villa owners and monthly and quarterly
statements. The witness also gives evidence as to the indebtedness with respect
to villa #14 as being US$11,285.06 being maintenance fees outstanding for the
period October 31, 2009 to January 2012”.
 Under cross-examination in relation to paragraph 4 of her witness statement, the
witness said that she did take steps to verify the amount owed by Platinum and to
find out when then owner was liable.
 Finally, the witness testified that she would have checked the balances as an
 This witness testified that he is the facilities manager of Half Moon Bay Home
Owners Company Limited and outlines his responsibilities.
 According to the witness there are four sewage plants on the premises of Half
Moon Bay Villas Development for which he is responsible to monitor and maintain.
He says further that the plants cost approximately US$9700.00 to maintain.
 In cross-examination Nicholas Dupra gave evidence as to the security on the
property, being two guards for the period 8:00 p.m. to 6:00 a.m. According to the
witness the guards have to show reports.
 In terms of the facilities at the Half moon Bay the witness explained that some are
shared, including the upkeep of lights. The witness explained further that the
owners do not directly pay for the street lights. Instead they pay for the
 Sonia Carr, as stated in her witness statement, is a director of Platinum Properties
Inc. of Hamilton Estate, Charlestown, Nevis.
 With respect to ownership of villa #14, the witness says that on August 6, 2010
Platinum Properties Inc. became the registered proprietor of Lot 14 (with villa
thereon) of Half moon Bay Villa Development, Frigate Bay.
 At paragraph 3 of the witness statement Sonia Carr says that the maintenance
fees claimed from Platinum Properties relate to a period when Platinum Properties
was not the registered proprietor of villa #14.1
1 The following paragraphs of the witness’ witness statement was struck out by order on the day of the trial.
 At paragraph 5 of her said witness statement, Sonia Carr gives the following piece
“5. There has been no production by the claimant of any
maintenance agreement that was executed by Daniela Dadurian
the original owner of Lot No. 14 that Platinum Properties Inc., is
purported to be governed by”.
 A meeting of Half Moon Bay Home Owner’s Company Ltd held on April 26, 2011 is
mentioned at paragraph 8 of Sonia Carr’s witness statement and mention made of
certain aspects of the minutes of said meetings.
 At paragraphs 13 to 16 of the said witness statement, the witness advances
certain positions with respect to villa #14. In terms of access, the witness says
that there is no access to the villa via any roads, paths and or walkways at Half
Moon Bay Villa Development. With respect to the sewage system, the witness
says that Platinum “is not averse to paying reasonable fees for the use and
maintenance of the sewage system”. However, as regards to the operation and
maintenance of the central sewage system, roads, water, security, gifts for
employees, landscaping, gardening, and liability insurance for the directors of Half
Moon Bay Home Owners Ltd”.
 At paragraph 19 of the witness statement, Sonia Carr denies that Platinum
Properties Inc, owes US$9,777.00 (XCD $26,398.28) as of November 15, 2011
and or any maintenance fees to Half Moon Bay Home Owners Company Limited.
And further at paragraph 20 the matter of the “mandated membership of Half
Moon Bay Home Owners Company Ltd is raised and rejected. This rejection
elaborated upon at paragraph 26 and 27 of said witness statement.
 The implications of Half Moon Bay Home Owners Company, being the
management company are raised by the witness at paragraphs 28 to 34. And with
respect to the said company the witness says inter alia,: “This company is not
owned, operated and or controlled by the homeowners of Half Moon Bay Villas.
The homeowners cannot control the running of a private company which they do
 Finally, the witness denies that Half Moon Bay Home Owners Company Ltd is
entitled to the relief sought in the particulars of its claim or any relief whatsoever.
 Under cross-examination Sonia Carr testified that she became involved in the lot
14 by managing it for someone else for about a year plus. And in further evidence
the witness detailed her involvement and her subsequent ownership thereof.
 In relation to the easements as noted on the Certificate of Title, the witness said
she understood what it means. In this connection the witness gives this evidence:
“Prior to my taking over from the person who was dealing with Ms Dadurian, she
had some outstanding payments. I am aware that the unpaid fees would become
a charge on the property”.
 The witness ended her testimony by saying that she should pay for a service if she
gets it but she is not getting the service for which she is being charged.
 There was no re-examination
 The following are the issues for determination:
(1) Whether by virtue of the content of Easement A(ii) noted on the
defendant’s Certificate of Title and the legal import of the Standard
Maintenance Agreement the claimant can lawfully disconnect or otherwise
deny Villa No. 14 of Half Moon Bay Development use of the sewage
system of the development;
(2) Whether the defendant is indebted to the claimant in the sum of
US$11,285.06 or any other amount plus interest thereon being the arrears
for maintenance fees with respect to the period October 31, 2009 to
January 3, 2012.
(3) Whether the defendant is entitled to succeed on its counterclaim.
Whether by virtue of the content of Easement A(ii) noted on the defendant’s
Certificate of Title and the legal import of the Standard Maintenance
Agreement the claimant can lawfully disconnect or otherwise deny villa No.
14 of Half Moon Bay Development use of the sewage system of the
 The submissions on behalf of the claimant seek to begin with the making of a
distinction between ‘Villa Development’ in order to distinguish it from condominium
developments which are governed by the Condominium Act2. The submissions
go on to say that land compromising the Development is governed by the Title by
Registration Act under which, by virtue of section 8, all noting by the Registrar of
Titles are indefeasible which term is defined in the First Schedule to the said Act.
 The submissions continue thus:
“9. Not being a condominium project, all property not transferred to
the owners of the villas remain vested in the developer. In other
words, the areas designated as common areas are not vested in
the homeowners pursuant to the provision such as section 11(9)
of the Condominium Act which provides that ‘[T]he owners are
hereby declared to be tenants in common of the common area’.
10. All rights of villa owners over the lands of the developer are
created by way of easements and similarly, all restrictions are
effected by way of restrictive covenants. Therefore there are
noted on the Certificates of Titles of all units of the development,
various easements and restrictions, including the easement in
favour of the Claimant referred to in paragraph 3 above. The
rights of the villa owners, including the Defendant, to use the
property of the developer is therefore restricted to and governed
by the terms of the said easements”.
 On the sub-issue of the right of the claimant to disconnect the defendant from the
sewage system the submissions continue thus:
2 Cap. 10.03, Revised Laws of Saint Christopher and Nevis, 2002
“11. The Defendant by virtue of a Certificate of Title dated 6th August
2010 and registered in Book J3 Folio 343 of the Registrar of Titles
for the Island of Saint Christopher is the registered proprietor of all
that lot piece of parcel of land with villa thereon described as Lot
14 of Half Moon Bay Villa Development.
12. On the Claimant’s title is noted the easement referred to in
paragraph 3 above. As a result of the provisions of the Titles by
Registration above as to indefeasibility, the easement cannot be
challenged in any court of law on the ground that it is not an
encumbrance on the said land; except on the ground of fraud
connected with the issue of each Certificate of Title to the
registered proprietor has been superseded by a title acquired
under the Limitation Act, Cap. 5 .09 by the person making the
13. The defence and counterclaim filed by the Defendant on 4th June
2012 does not raise the issue of fraud. Hence, there is no
challenge that easement is duly noted on the Defendant’s
Certificate of Title. In fact it is not in the interest of the Defendant
to challenge the notation of the easement as the Defendant
appears to wish to continue to avail herself of the right conferred
by the easement.
14. What the Defendant appears to wish to do is avail herself of the
right but not to be bound by the condition upon which the
easement is granted, i.e. the payment of maintenance fees”.
 The submissions go on to examine the implication of a positive covenant and the
cases of Austerberry v. Corporation of Oldham3, Halsell v Brisell4 and Rhome
and others v Stephens (Executrix of Mrs. M Bernard, deceased)5 in relation to
 The submissions end in this way:
“In the present claim the right to enjoy the use of the sewage is an
easement granted to the Defendant. However, as mentioned above the
right is additional upon the payment of the prescribed maintenance fees. It
is therefore submitted that the Defendant’s failure to pay the said
maintenance fees that is demanded by the Claimant allows the Claimant
to deny the Defendant the enjoyment of the said sewage system. No
payment means that the Claimant has failed to satisfy in order to exercise
the right to use the sewage system”.
3 29 Chp 750
4  CL 169
5  2 AC 310
 The submissions on behalf of the Defendant address the matter of easement
frontally. They begin with a statement of the principle that the law does not
recognize positive easements in that a right will not be held to be an easement if it
requires expenditure of money by the grantor. The submissions go on to state that
an easement must be negative from the point of view of the servient owner, that is,
it must not involve the servient owner in any expenditure. And by the same
token, a servient owner is under no obligation to carry out any maintenance or
construction work which may be needed for the enjoyment of the easement.
 In dealing with the exceptions to the general rule, two recognized exceptions are
“(1) Where there is an easement of fencing, the servient owner is
bound to maintain the fence for the benefit of the dominant
tenants, notwithstanding that the maintenance will involve
expenditure of money; and
(2) Where the parties have expressly or impliedly agreed that the
servient owner is to be responsible for the maintenance; for
example, a local authority which has apartments in a high-rise
building to tenants was held liable as under an implied covenant
to maintain easements of access over the common parts of the
 It is abundantly clear from the Title by Registration Act that titles entered in the
register of titles are indefeasible and can only be challenged on very narrow
grounds, including an allegation of fraud. In this connection one of the
submissions on behalf of the claimant make the point that in its defence the
defendant did not allege fraud so that the rule as to indefeasibility stands. The
 The focus must now be on the easement in issue as noted on the register in
relation to villa No. 14, Half Moon Bay Development.
 As noted before, there are certain easements, in relation to the villas comprising
Half Moon Bay Development, which are noted on the relevant Certificates of Title
and by extension on the land register.
 Easement A (ii) falls within this category, It falls under the rubric “EASEMENTS
OF HALF MOON BAY VILLA DEVELOPMENT” and reads thus:
“A. The Registered Proprietors6 have full right and liberty in common
with Half Moon Bay Limited and all other persons having like right
and subject to the rules of Half Moon Bay Villa Development as
may be prescribed from time to time the management company of
the said development and conditional upon the payment of the
Registered Proprietors to the said management company of
maintenance fees in accordance with the Standard Maintenance
Agreement of the said development …
(i) To go pass over the roads, paths and walkways of the said
development to gain access to the land thereby transferred.
(ii) To use the sewage system to which the said development is from
time to time connected”.
 The court notes ab initio that the easement in issue does not require the court to
make a determination as to whether it satisfies the law as to its content or method
of creation. On the contrary, the covenants are granted by Half Moon Bay
Development. Indeed, this accord with the learning that: “Unless arising by
statute, implication or prescription all legal easements and legal profits a pendre
must be created by deed. There is no exception to this principle …”.7 And further
than that, the umbrella words to the easements and covenants forming part of the
Certificates of Title makes the grant conditional on the payment of maintenance
fees in accordance with the Standard Maintenance Agreement.
 The matter then comes down to the status of an easement by way of maintenance
fees bearing in mind the indefeasibility of the Certificate of Title to Villa No. 14
Half Moon Bay Development
7 See: Gray Elements of Land Law, (3rd ed) at para 5.2.7
 The grant of an easement must necessarily bring with it the necessary law unless
it is excluded.
 Both sides in their submissions refer to the law surrounding a positive easement,
with the narrow rule being that the law does not recognize a positive easement,
being one that requires the expenditure by the servient owner.
 It is also submitted on both sides that there are exceptions to positive covenants.
This is illustrated in the case of Rhome and another v. Stephens (Executrix of
Mrs. M Bernard, deceased) in which Lord Templeman after an examination of the
relevant cases said this:
“It was held that the defendant could not exercise the rights without paying
his costs of ensuring that they could exercise. Conditions can be attached
to the exercise of a power in express terms or by implications. Halsall v
Brizell was just such a case and I have no difficulty in agreeing with the
decision. It does not follow that any condition can be rendered enforceable
by attaching it to a right nor does it follow that every burden imposed by a
conveyance may be enforced by depriving the covenant’s successor in
title of every benefit which he enjoyed there under. The condition must be
relevant to the exercise of the right”.
 Learned counsel for the defendant, as noted above, cited as an exception to a
positive covenant as where there parties have expressly or impliedly agreed that
the servient owner is to be responsible for the maintenance. To that must be
added the following dictum of Lord Templeman in Rhome v Stephens8:
“Equity cannot compel an owner to comply with a positive covenant
entered into by his predecessors in title without flatly contradicting the
common law rule that a person cannot be made liable upon a contract
unless he were a party to it. Enforcement of a positive covenant lies in
contract; a positive covenant compels an owner to exercise his rights.
Enforcement of a negative covenant deprives the owner of a right over
 It is clear to the court that the maintenance fees prescribed under the Maintenance
Agreement are central to the easement to use the sewage system. And at
paragraph 2 of the terms of the easements the following is duly stated:
8  2 WLR 429
“That failure by the Purchasers or their successors it title to pay any
maintenance costs or other sum due by them under the Maintenance
Agreement shall give rise to a charge on [the] land and building hereby
transferred which charge shall be enforceable as an encumbrance and
shall give the management company a sufficient interest in the land and
building hereby transferred to sustain a caveat on the Certificate of Title”.
 Given the rule that the enforcement of a positive easement lies in contract, the
Maintenance Agreement comes further into focus. By way of example a copy of
this document is an exhibit to Scott Jaynes’ witness statement9. This document
bears the following headings:
“STANDARD MAINTENANCE AGREEMENT (MANDATORY
AGREEMENT OF ALL UNIT OWNERS)”
 Then comes the following:
“AN AGREEMENT made this … day of … 2008 BETWEEN HALFMOON
BAY HOME OWNERS COMPANY LTD a company duly incorporated
under the laws of and registered in St. Christopher and Nevis and having
it registered office at Villa #3, Half Moon Bay Villas Frigate Bay, St. Kitts
(hereinafter called “the Management Company”) and Stephen and J Delay
(hereinafter called (“the unit owner”) owner of Unit No. 20A Half Moon
Villas (hereinafter called (the development) WHEREAS the unit owner has
purchased from the initial owner or the original developer of the
Development Unit No. 20A and agrees to the Easements and Restrictive
Covenants of the Development as shown below and WHEREAS this
agreement is the standard agreement applicable to all units in the
Development and is intended to ensure the proper and efficient
maintenance and management of the Development for the benefit of all
unit owners therein”.
 The agreement contained Restrictive Covenants and then comprehensive
statements as to what the parties agreed on. Of, immediate relevance are clauses
5(iii), 5(x) and 5(xi).
 Clause 5(iii) says that the maintenance costs shall be borne between the units on
a pro rata basis dependant on the total number of bedrooms in each unit. Clause
4(iv) shall give rise to a charge on the unit which charge shall be enforceable as
an encumbrance and shall give the management company a sufficient interest in
9 In his witness statement at para 7 Scott Jaynes says that the copy of the Standard Maintenance Agreement
is by way of example. It relates to Villa No. 20A.
the unit to sustain a caveat on the Certificate of Title of the unit. And clause 5(xi)
prohibits the unit owner from selling, assigning or transferring his interest in the
unit until all maintenance charges and all sums due pursuant to Clauses 4(i), 4(iii)
and 4(iv) are paid in full to the management company.
 It is clear therefore that a methodology exists for dealing with a situation where
there is a failure to pay maintenance costs. And preventing the unit owner from
using the sewage system to which the development is connected is not an option.
 But beyond that, Scott Jaynes under cross-examination said this in relation to
Villa No. 14, and paragraph 7 of his witness statement:
“I have no idea as to where the agreement might be between Platinum
and Half Moon Bay. I do not I know of the existence of one”.
 And Sonia Carr under cross-examination denied signing a contract in 2009. Thus
in the circumstances learned counsel for the defendant submits that the defendant
that the defendant did not sign a standard maintenance agreement, nor did
immediate past previous owner, who purchased directly from Half Moon Bay
Limited sign agreement.
 Contextually the submission on behalf of the claimant is couched in these terms:
“There is no principle of law which avoids a binding agreement by a party
to do any of the matters referred to in the declaration sought. The
Defence is premised on the Defendant being bound by the Standard
Maintenance Agreement and there is no evidence whatsoever on which
the Defendant can rely to relive it from its contractual obligations”.
 The language of the submission is undoubtedly concise and brilliant but there are
serious hurdles to cross. Indeed, there is no rule of law which suggests that the
submission has so crossed. What must happen, however, is a brief reexamination
of the defence.
 At paragraph 6 of the defence, paragraph 4 of the statement of claim is admitted.
This deals with the easements granted as endorsed on the certificate. At
paragraph 7 the defendant avers that during the period claimed for maintenance
fees, the defendant was not the registered proprietor. And further at paragraph 8
oral requests for payment of fees is denied; but at paragraph 9 receipt of a letter
from the claimant’s attorney-at-law is admitted. In the remainder of its defence an
attack on the governance of the developments is unleashed.
 It is clear to the court that the admissions by the defendant are in relation to the
Certificate of Title and there is no mention of any agreement being executed. This
agreement, as noted before is mandatory and provides, enter alia, for the levying
of fees on villa owners and generally for the governance of the development. In
any event the court cannot accept that these admissions by the defendant can
contradict or over ride the clear and unequivocal evidence of Scott Jaynes that he
have no idea where the agreement between Platinum and the claimant might be.
Add to this Sonia Carr’s evidence that she did not sign such an agreement. And it
is trite law that the onus in its entirety is on the claimant.
 It is therefore the determination of the court that Easement A(ii) as endorsed on
the defendant’s Certificate of Title has attached to it a methodology to enforce
payment of maintenance fees as prescribed under the Standard Maintenance
Agreement which does not include preventing the use of the sewage system. In
any event, there is no evidence that the defendant executed the mandatory
Standard Maintenance Agreement; this removes the legal basis to recover
maintenance fees which are prescribed under the said agreement.
ISSUE NO. 2
Whether the defendant is indebted to the claimant in the sum of
US$11,285.06 or any other amount plus interest thereon being the arrears for
maintenance fees with respect to the period October 31, 2009 to January 6,
 Because of the court’s determination on the first issue this issue has become
largely academic. However, the court will re-state the finding of fact that because
there is no evidence that the defendant executed the mandatory Standard
Maintenance, there is no obligation for the defendant to pay the prescribed fees
ISSUE NO. 3
Whether the defendant is entitled to succeed on it counterclaim
 In light of the rulings on the claimant’s claim, the court will exercise judicial
restraint because some of the reliefs sought are not properly before this court,
while others are addressed by the rulings given.
 IT IS HEREBY ORDERED AND DECLARED as follows:
(1) Easement A(ii) as endorsed on the defendant’s Certificate of Title has
attached to it a methodology to enforce payment of maintenance fees as
prescribed under the Standard Maintenance Agreement which does not
include preventing the use of the sewage system by the defendant;
(2) There is no evidence that the mandatory Maintenance Agreement was
executed by the defendant which removes the basis for the recovery of
such fees which are prescribed under that Agreement;
(3) The Defendant is not indebted to the claimant in the amount of
US$11,385.06 or at all;
(4) The court exercises judicial restraint with respect to the defendant’s
counterclaim because some of the reliefs sought are not properly before
this court and the rulings while others are addressed by the said rulings;
(5) The claimant must pay the defendant prescribed costs based on the value
of the claim.
High Court Judge (Ag)