Introduction
Two key documents shine a spotlight on the deteriorating state of Jolly Harbour's critical infrastructure and Caribbean Developments (Antigua) Limited (CDAL)'s alleged mismanagement:
- The "FULL RESERVE STUDY" by Reserve Advisors, LLC (revised July 7, 2022), which warns of long-term under-maintenance of roads, sewage, water lines, electrical systems, seawalls, and more.
- An additional July 2022 report calculating a US$62.3 million repair backlog over 30 years, also attributing major infrastructure failures to CDAL's protracted negligence.
Taken together, these findings demonstrate how CDAL failed to maintain adequate reserves or keep up with mandatory upkeep—effectively creating a multi-million-dollar crisis. Drawing on Antiguan property law and British precedents such as Waaler v Hounslow LBC [2017] EWCA Civ 45, Fluor Daniel Properties Ltd v Shortlands Investments Ltd [2001], and local rulings including Coleman vs. CDAL, freeholders have strong legal grounds to hold CDAL liable for extraordinary repair costs arising from its own negligence.
1. Infrastructure in Disrepair: Evidence from Both Studies
A. No Reserve Budget & Massive "Catch-Up" Costs
- The Reserve Advisors Study states:
"Zero dollars ($0) as of January 1, 2022… Jolly Harbour did not budget Reserve Contributions in 2022."
- A further highlight from the July 2022 analysis notes US$62.3 million in needed repairs over 30 years, confirming a shocking backlog.
- Legal Point: Having no funded reserves and now demanding multimillion-dollar "catch-up" special assessments suggests CDAL knowingly deferred vital infrastructure work. Under Fluor Daniel, such failures can be contested if they inflate costs beyond "reasonably incurred" maintenance.
B. Critical Systems Falling Apart
- Generators & Switchgear (1992, 2004)
- Deemed obsolete, lacking replacement parts, and located in flood-prone cargo holds with "poor structures."
- The Study: "We recommend replacement… in the near term."
- Sewage Lift Stations & Pipes
- "Poor overall condition," "only one operational pump," patchwork repairs from one station to another—signs of deep-rooted neglect.
- The second report cites "systemic rust," "no routine inspections," "partial collapses."
- Major Domestic Water Main
- HDPE pipe with 25+ breaches in a single year: "We opine complete replacement… in the near term in lieu of continued repairs."
- Seawalls
- Over 29,000 feet of aging sea defences with "spalling," "exposed reinforcement," and partial failures—some dangerously close to collapse.
Both the Full Reserve Study and the July 2022 analysis reflect a recurring pattern of "original to 1990s, seldom repaired, no proactive upkeep." Under British law's Waaler test for "reasonable" charges, owners are justified in disputing fees that correct deferred maintenance or developer negligence.
2. Breaches of Law and Original Obligations
A. Violations of the "Benefit to Parcel" Covenant
Under the Land Transfer covenant, monthly fees must be spent "to and for the benefit of each parcel." The Study states that large portions of community charge hikes are actually paying to rectify neglected systems that should have been maintained all along. This runs afoul of Waaler, which requires that service charges be "reasonably incurred"—not loaded with catch-up expenses from past mismanagement.
B. Contravention of 1995 Sales Documentation
The second article references 1995 sales documents, which established that if the developer's revenues from maintenance fees fell short, CDAL must cover deficits from its own resources. Yet the Reserve Advisors Study reveals CDAL contributed effectively US$0 in 2022. Additionally, they neglected basic repairs for decades, forcing a massive lump-sum remedy. This breaches the original commitments, in line with Fluor Daniel principles that a management entity cannot saddle owners with extraordinary costs arising from its own omissions.
C. Unjust Enrichment & Negligence
- Lavender v Betts [1942], while dealing with self-help eviction, also lays down that a party cannot impose extraordinary measures if it created the crisis by failing prior obligations.
- By not funding reserves or systematically servicing infrastructure, CDAL arguably caused the current multi-million-dollar backlog, effectively seeking to shift liability to freeholders.
3. Specific Failures Highlighted in Both Reports
1. Electrical & Generator Systems
- "Obsolete and replacement parts no longer available," no meaningful maintenance budget.
- Study calls for immediate generator upgrades costing over US$600,000—essentially due to prior neglect.
2. Sewage & Water
- Sewage pumps described as "borrowed from one station to service another"—a hallmark of crisis management, not routine upkeep.
- HDPE main pipe installed incorrectly on rocky ground, requiring near-constant repairs.
3. Seawalls
- Over 29,800 feet at or past design life, neglected to a point of partial collapse.
- The second article references high environmental and structural risks from failing sea defenses.
Legal Implication: Such large-scale deterioration does not equate to normal wear-and-tear; it suggests CDAL systematically failed in ongoing maintenance—meaning owners are not obligated to absorb full catch-up costs that are, in essence, penalties for developer negligence.
4. The Multi-Million Dollar "Catch-Up" Bill
The Reserve Study demands:
"Additional annual assessments totaling $7,000,000 from 2023 through 2025… near term infrastructure replacements and improvements."
An extra US$233 per month per owner, plus a future baseline contribution possibly exceeding US$2.4 million a year. Under general Antiguan contract principles and Fluor Daniel, if the manager fails to plan or maintain, they cannot wholly offload the financial consequence onto freeholders.
5. Recommended Actions for Freeholders
1. Contest Disproportionate "Catch-Up" Fees
- Demand an itemized breakdown differentiating standard replacements from urgent repairs triggered by CDAL's inaction or minimal prior reserves.
2. Invoke British Precedents
- Cite Waaler v Hounslow LBC, Fluor Daniel, and local rulings like Coleman vs. CDAL. Argue that huge special assessments addressing old negligence are not "reasonably incurred."
3. Seek Independent Validation
- If CDAL insists freeholders pay for all "urgent" works, owners can request an external engineering or financial audit verifying that the root cause is not prior mismanagement.
4. Enforce the "Deficit Coverage" Clause from 1995
- The second article underscores that the landowning company (CDAL) originally pledged to cover shortfalls. If the developer reneges, owners may claim breach of contract.
6. Message Template for Freeholders
Subject: Formal Request for Clarification and Contesting "Catch-Up" Fees
Dear [Name/Title at CDAL Management],
I write as a freeholder in Jolly Harbour, deeply concerned about the extraordinary "catch-up" fees proposed for near-term infrastructure replacements—particularly as documented in the Revised FULL RESERVE STUDY by Reserve Advisors, LLC (July 7, 2022). The study, along with subsequent disclosures, indicates systemic under-maintenance of critical community infrastructure over many years, resulting in a colossal backlog of urgently required repairs.
Under Antiguan and British common law precedents—such as Waaler v Hounslow LBC [2017] EWCA Civ 45 and Fluor Daniel Properties Ltd v Shortlands Investments Ltd [2001]—charges are only "reasonably incurred" if they reflect normal wear-and-tear or prudent, ongoing maintenance. When major repairs stem from a pattern of negligence or deferred upkeep, the responsibility cannot unilaterally be forced on freeholders.
With this context in mind, I respectfully submit the following requests and objections:
1. Itemized Distinction of Costs
• Please provide a detailed breakdown distinguishing standard repair/replacement expenses from those primarily resulting from deferred maintenance. I have a right to contest any portion of the proposed fees attributable to mismanagement or underfunding of reserves in previous years.
2. Evidence of "Reasonableness"
• Waaler v Hounslow LBC makes it clear that service charges must be "reasonably incurred" and beneficial to each parcel. If the "catch-up" fees reflect extraordinary costs caused by CDAL's own lapses in maintenance or reserve funding, these should not automatically fall to freeholders like me.
3. Accountability for Deferred Maintenance
• The 2022 Reserve Study highlights repeated references to "original," "under-maintained," and "long-neglected" infrastructure. Please explain how much of the proposed special assessment or increased monthly charge is directly tied to those long-standing omissions.
• If, as the report suggests, major repairs or replacements were avoidable through timely upkeep, then I expect CDAL, as the developer/owner of the infrastructure, to bear a substantial share of these costs.
4. Adherence to 1995 Commitments (if applicable)
• If commitments in the 1995 sales documentation pledged that CDAL would cover operational or capital deficits from its own resources, please confirm whether you will honor those obligations for these "catch-up" repairs.
5. Request for Meeting or Written Response
• I respectfully ask for a formal meeting or a comprehensive written reply within [reasonable timeframe, e.g., 14 days] to address these points. Should these issues remain unresolved, I reserve the right to explore legal remedies under both Antiguan and British common law.
Thank you for your attention to this matter. I look forward to your prompt and detailed response, ensuring transparency and fairness in how CDAL is going to finance crucial infrastructure work moving forward.
Sincerely,
[Your Full Name]
[Parcel Information]
[Date]
[Contact Information]
7. Conclusion
Both the Revised Full Reserve Study and the subsequent July 2022 report confirm that CDAL let Jolly Harbour's infrastructure deteriorate through decades of inadequate maintenance, absent reserves, and postponed repairs. Under recognized British common law (Waaler, Fluor Daniel, Lavender) and relevant Antiguan precedents (Coleman vs. CDAL), this negligence prevents the developer from unilaterally transferring massive "catch-up" repair bills to freeholders.
Key Takeaways for Owners:
- Challenge any proposed special assessments or community charge hikes that rectify what is effectively a backlog from CDAL's omissions.
- Demand full disclosure and itemization of exactly which repairs are standard "wear-and-tear" vs. neglected replacements or expansions.
- Enforce original obligations from the 1995 documentation requiring CDAL, not freeholders, to cover deficits if maintenance fees prove insufficient.
- Consider legal recourse in Antiguan courts, pointing to Fluor Daniel and Waaler to show that forcing owners to fund catch-up costs due to manager negligence is not "reasonably incurred" and thus invalid.
Ultimately, these Reserve Studies—intended to plan for typical upkeep—now reveal a colossal backlog that signals CDAL's systemic failure to manage Jolly Harbour's core infrastructure. Under both local and British legal doctrines, property owners have ample grounds to resist bearing the financial fallout of that negligence.