Sun | Oct 21, 2018

Laws of Eve | Bringing order to gated communities

Published:Monday | March 26, 2018 | 12:00 AM

Most 40-something year-old Jamaicans either grew up in idyllic rural communities where everybody knows everybody (and their business), windows had no metal companions that blocked the view and doors were never locked; or in single-family homes in urban communities where burglar bars were the common security feature.

Fast-forward to 2018 and, although some rural communities maintain some level of openness, the typical first-time home purchase in an urban community is an apartment or town house in a gated residential complex.

There are many reasons why the housing stock in urban areas include few single-family dwellings. For example, with little available land, multi-family dwellings help to maximise the use of limited space and land developers earn greater profit by constructing multi-family dwellings. However, in today's Jamaica, perhaps the main attractions to gated complexes are the perceived safety, privacy and exclusivity the automatic gate provides, as well as the ability to have access to amenities, such as a pool, at a shared cost.

Those attributes of gated communities come at ever-increasing costs that help to maintain the aesthetic appearance of the community, the uniform appearance of the homes and, ultimately, their value. Conversely, the homes in many gated communities lose their value, and common structures, such as clubhouses, fall into ruin, because some homeowners fail to pay their portion of the shared costs. Most important, when major capital expenses (such as road paving and repairs to automatic gates) have to be incurred and there is no readily available pool of funds to cover them, it is difficult to reach a unanimous agreement for homeowners to make lump sum contributions.

At present, there is legislation that compels strata owners to pay shared costs and allows strata corporations to take legal action to protect the rights of strata owners. The same is not true for gated communities that are not comprised of strata units in which there is presently reliance on an honour system and each homeowner's conscious desire to preserve the community. Unfortunately, that is not enforceable in a court of law.

 

MUST BE REGISTERED

 

In my opinion, for gated communities to operate effectively, they must be governed by laws that at least have the following features:

- Each gated community must establish a legal entity, such as a corporation, that is comprised of various homeowners;

- That corporation must be registered with a central monitoring authority;

- Standard by-laws must be incorporated into the constitution of all corporations, subject to certain variations depending on the peculiarities of the gated community in question;

- The corporation must have the authority to pass resolutions in relation to the monthly amounts to be paid by each homeowner to cover the common expenses within the gated community;

- The corporation must be subject to the presentation of annual financial statements;

- The corporation must have the authority to commence and defend legal actions in court or before the central monitoring authority, especially in relation to the payment of monthly maintenance;

- In the event that any homeowner defaults in the payment of maintenance for some stipulated period, the corporation must have authority, through some detailed procedure, to sell that homeowner's property in order to settle the arrears.

Ultimately, the advantages of regulating gated communities will become apparent, but homeowners will have to endure the teething pains that come with the implementation of a structure where none had previously existed.

- Sherry Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.