The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A Bahamian QC and her attorney husband have voiced hope that lengthy legal appeals can be avoided in their battle with a Nassau condo complex, which has accused them of “cynical” behaviour over $222,302 in disputed fees.

Krystal Rolle QC, in a statement to Tribune Business, said she and her husband, Wallace, were hoping to “arrive at a mutually agreeable accommodation” with Town Court and its Board/management so both sides could “bring this long outstanding matter to a close without the need of invoking the appellate process”.

She responded after Justice Ian Winder, delivering his verdict on a case filed some 17 years ago, and which only came to trial in 2021, dismissed the Rolles’ bid to obtain a Supreme Court declaration that the downtown Nassau condominium is “not entitled to recover” the allegedly outstanding homeowner and maintenance fees it claims are owed.

However, the judge did award the legal duo a combined $26,000 representing lost rental income on the unit they own as well as pipe/plumbing repairs they personally paid for years ago. The Rolles alleged that Town Court, which is located on north Nassau Street opposite the Courtyard Marriott hotel, failed to rectify issues that saw waste water and sewerage leak into their apartment and the lobby resulting in “rodent infestation coupled with a constant foul odor”.

The Rolles’ dispute with Town Court’s Board and management began after they purchased its Unit A-5 soon after the 21st century’s start, intending to use it as a rental income-generating property. They argued that the entity assigned to manage the complex, and Real Estate International, the realtor to which this responsibility was assigned, did not have the authority to levy homeowners and maintenance fees or collect them.

This was based on Town Court’s 1978 Declaration of Condominium, which transferred responsibility for the complex’s management from the developer, Bethel Estates, to the unit owners. Town Court Management Company, the defendant in the Rolles’ action, was named in the declaration as “the body corporate”.

The couple, in their statement of claim, argued that the law stipulates unit owners only form “the body corporate” if no such entity is named in the declaration. This, they said, was not the case with Town Court. Yet on May 15, 1996, the agreement that outsourced fee collection responsibility to Real Estate International was made by Town Court Condominium Association, an entity representing the unit owners.

In addition, all fee billings issued by Real Estate International between that date and 2010 were in the name of Town Court Ltd, an entity that was struck-off the Companies Register on May 31, 2002, and never reinstated. As a result of all this, the Rolles alleged the management agreement with Real Estate International and all activities it had performed - including the billing and collection of fees - were “null and void” and they sought a Supreme Court declaration of this.

They also sought a Supreme Court declaration that the fees themselves were “null and void”, and that Town Court was “not entitled to recover.. the outstanding maintenance fees” being levied. However, Town Court and its attorney, Khalil Parker QC, interpreted this as attempting to exploit legal technicalities or loopholes to avoid paying the fee debt that was due.

Town Court, in its defence, accused the Rolles of “attempting to cynically capitalise on alleged superficial irregularities on the face of the management contract and the defendant’s [Town Court] billing for outstanding contributions.... The court ought not to entertain their pettifoggery in attempting to justify their extreme and inexcusable delinquency and refusal to pay”.

Pointing out that the vendor who sold the Rolles unit A-5, William Fijnheer, had no issue paying his fees, Town Court asserted that the couple were placing “undue emphasis” on the fact Town Court Ltd’s name was used on billings and account statements, describing this as “clearly a clerical error which the plaintiffs, both practicing attorneys, are seeking to dishonestly exploit in order to avoid satisfying the arrears of contributions due and owing”.

Town Court counter-claimed for this sum, which it alleged stood at $222,302 as at October 1, 2019. “The plaintiffs admit that Unit A-5 is in arrears, and yet they are seeking to dishonestly and unreasonably avoid the lawful obligation to contribute to the maintenance and operation of Town Court condominium,” Town Court alleged.

“The plaintiffs have yet to explain how their spurious claims relieve them, as the self-proclaimed owners of Unit A-5, of their obligation to pay contributions towards the operation and maintenance of Town Court condominium. The plaintiffs, particularly as attorneys, ought not to feign ignorance of the fact that the arrears of contributions were accruing, and were due and owing to the defendant with respect to Unit A-5.

“Instead of merely alerting the defendant to the typographical error in its billing, the plaintiff sought instead to rely on it as an excuse for not paying their lawful contributions.” Lesia Hall, another Town Court unit owner, alleged that the Rolles’ unpaid fees had been “deliberately cultivated.... over the the years to the significant disadvantage of their fellow unit owners who have been forced to bear the burden of their selfish delinquency”.

She claimed that their fee delinquency was the sort of behaviour that would “financially destabilise” Town Court, branding the couple’s claim as “unfair and oppressive and damaging to harmony and good operation at the condominium. My fellow unit owners are understandably furious at the plaintiffs’ attitude and the sheer scale of their protracted and admitted delinquency”.

While finding both sides to be truthful witnesses, Justice Winder said Terrance Fountain, who served as Town Court’s chair when the deal with Real Estate International was executed, was the only person with first-hand knowledge of what transpired in 1996. As a result, he agreed that the references to Town Court Ltd were “clerical in nature” and rejected the declarations sought by the Rolles.

Justice Winder instead ordered a “proper accounting” be done of the charges levied on the Rolles and, once this is done, they will have to pay the outstanding sum due. Mrs Rolle, in her statement to Tribune Business, said the only fees in dispute were those that has been charged prior to 2011, when Town Court’s affairs were “regularised”.

And she added that the Supreme Court did not determine whether Town Court could delegate management authority, nor if the fees charged by Real Estate International were common area expenses under the law. As a result, Mrs Rolle said she hoped the accounting will address both issues. 

“When we first bought into Town Court in 2001 we noted a number of irregularities, which included a failure to maintain the common areas, the fact that the developer, Town Court Ltd, had been managing the condominium and acting as the body corporate, and the fact that a company by the name of Real Estate International was managing and operating the condominium,” she added.

The Rolles enjoyed more success with their claim for loss of rental income due to the plumbing/pipe issues, and sewerage leaks, they met and which they paid to fix. Justice Winder ordered that they receive $20,000 for lost rental income and be reimbursed almost $6,000 for the repairs they financed.