Rollins
Barbara Gayle, Staff Reporter
BASS HOTEL and Resorts (Jamaica) Limited, which purchased the Holiday Inn, Montego Bay, from the Financial Sector Adjustment Company (FINSAC) in 1999, can now develop without any restriction the three contiguous strips of land totalling seven acres which are in close proximity to Holiday Inn and the Half Moon Hotel.
The United Kingdom Privy Council gave the go-ahead when it dismissed an appeal brought by Half Moon Bay Ltd. which was contending that there was a restrictive covenant affecting the the three strip of lands known as the Rocamora lands..
Half Moon Bay Limited, which owns the Half Moon Hotel, had taken Crown Eagle Hotels Limited, former owners of Holiday Inn to court over the Rocamora lands.
Half Moon Bay Limited. had sought a declaration that because of a restrictive covenant, Crown Eagle Hotels Ltd. was only entitled to build 12 cottages on the Rocamora lands.
Rose Hall (Developments) Ltd. which was operated by the late John Rollins, a millionaire who had purchased the Rocamora lands from Half Moon Bay Ltd. in the 1960s.
Mr. Rollins had agreed to a restrictive covenant as a condition of the sale that only 12 cottages would be built on the lands and they should not exceed two-storey heights.
Mr. Rollins did not build the cottages. He sold the lands to Crown Eagle Hotels Ltd.
It was Half Moon Bay's contention that Mr. Rollins would not be expected to sell the lands without the restrictive covenants.
Crown Eagle contended at the hearing in 1996 before Justice Ransford Langrin in the Supreme Court that there was no restrictive covenant on the lands.
Justice Langrin found that there was no restrictive covenant on the lands and refused to grant the declaration.
Half Moon Bay appealed and, on December 10, 1999, the Court of Appeal comprising Justice Henderson Downer, Justice Clarence Walker and Justice Seymour Panton, dismissed the appeal.
The court held that the covenant was only enforceable by the original covenantee Half Moon Bay Ltd. on the original covenantor, Rose Hall Developers Ltd.
After FINSAC took over Holiday Inn in 1998, it sold the hotel and lands to Bass for US$21 million. The transfer was registered on August 3, 1999.
When Half Moon Bay Ltd. took the case to the United Kingdom Privy Council this year, leave was granted for Bass to be joined as an additional respondent.
No error or omission
The Privy Council, in dismissing Half Moon Bay's appeal last month, held that even if the covenants were capable of benefiting the Half Moon Hotel, they were unenforceable for want of entry or notification at the relevant time on the certificates of title in the Register Books.
The Privy Council said further that Bass obtained title to the Rocamora lands from a registered proprietor "which was entitled to them free from the covenants, and it was entitled to be registered with the title which it had acquired.
"Thus there was no error or omission in registering Bass as proprietor of the Rocamora lands without reference to the covenants in the 1966 transfer to which they had long ceased to be subject."
In February 1997, while Half Moon Bay was appealing from the judgment of Justice Langrin , the covenants in the 1966 transfer were entered on the certificates of title in the Register Book.
The Privy Council said that the 1997 entries in the Register Book seemed to have come as a surprise to the respondents when they discovered them.
"If the 1997 entries are still on the certificates in the Register Book, they should be expunged," the Privy Council ruled.
Half Moon Bay had contended that section 63 of the Registration of Titles Act did not make a distinction between personal covenants and covenants that run with the land and that the effect of section 63 was that upon registration of a transfer the land was automatically made subject to the covenants and conditions contained in the instrument of transfer.
The Privy Council said it was unable to accept that submission. "Section 63 does not make covenants enforceable against the transferee which are not capable of binding the land in his hands; nor does it override the terms of section 70, which renders unenforceable for want of registration incumbrances which are not entered or notified on the Register Book," the Privy Council ruled.
