Analyzing CDAL's "Community Charge" Legal Opinion

A Property Owner's Response Guide

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Published: December 21, 2024 | Updated: January 14, 2025

Disclaimer: This article is for informational purposes only and does not constitute legal advice. For definitive guidance on your specific situation, please consult an attorney qualified to practice in Antigua and Barbuda.

Original Legal Opinion Document

Read the complete Hill & Hill legal opinion on CDAL's community charges:

Download Hill & Hill Opinion (PDF)

1. Introduction & Context

On July 26, 2023, the law firm Hill & Hill issued a legal opinion on behalf of Caribbean Developments (Antigua) Ltd. (CDAL) to justify levying "community charges" on freeholders in Jolly Harbour. This opinion, in essence, argues that property owners:

  1. Are broadly bound to pay monthly charges.
  2. Cannot refuse payment even if certain parcels saw little or no benefit.
  3. Must accept CDAL's unilateral decisions as to what services constitute "benefit."

However, for many freeholders, this position conflicts with the Land Transfer covenant language requiring that the community charge be used "to and for the benefit of [your] parcel" (emphasis added). Below is an in-depth look at the Hill & Hill opinion, the relevant jurisprudence, and the key arguments freeholders can raise to challenge overbroad or misapplied fees.

2. Overview of the Hill & Hill Opinion

In their memorandum, Hill & Hill acknowledge that:

  • Most homeowners in Jolly Harbour are subject to Restrictive Covenants, one of which obligates owners to pay a monthly maintenance (community) charge.
  • The covenant specifically references "services provided to and for the benefit of the above-mentioned parcel," naming items like security, grounds maintenance, infrastructure, sewage, lighting, and insurance for common areas.
  • Hill & Hill conclude that so long as there is some "benefit," owners have no legal basis to withhold payments—even if there are lapses in CDAL's maintenance or service provision.

CDAL's Key Claim:

CDAL interprets this covenant to allow them to charge owners for virtually any infrastructure or equipment they consider "beneficial" to parcels—even if owned by CDAL, even if major repairs reflect backlog from neglect, and even if no direct benefit has accrued to certain parcels or owners.

3. Legal Issues and Covenants in Dispute

A. Direct-Benefit Requirement

Most Land Transfer covenants in Jolly Harbour impose a "services … to and for the benefit of the above-mentioned parcel" requirement. This can limit or negate fees for:

  • Unoccupied Lots or Parcels: If an owner neither consumed water/electricity nor utilized infrastructure (e.g., no functional lighting, no actual security patrol), the "benefit" test is questionable.
  • Poorly Maintained Systems: Ongoing sewage failures, broken streetlights (until late 2024), neglected roads—these are legitimate grounds to dispute whether the monthly charge truly provided any direct benefit.

B. Infrastructure Deficiencies

Multiple freeholders point to:

  • Repeated Sewage Overflows
  • Streetlights, Bridges, Roads in disrepair
  • Lack of functional amenities—yet monthly charges have been demanded.

Hill & Hill's opinion largely bypasses the question of whether the relevant service was rendered or the infrastructure truly "maintained."

C. Unilateral Determination vs. Common Law Reasonableness

Hill & Hill reference cases implying that owners cannot merely "refuse" charges; however, British and Antiguan precedents require that:

  1. Fees must be "reasonably incurred" and
  2. Have an actual or demonstrable benefit to each parcel.

In Jolly Harbour, if the infrastructure remains defunct, owners have grounds to question how these charges pass the reasonableness threshold.

4. Analysis of Hill & Hill's Referenced Cases

(i) Trinity Investment Case ([2016] ECSCJ No. 152)

  • Hill & Hill's Use: They cite Trinity to argue that owners cannot withhold fees purely because they disagree with management decisions.
  • Why It's Not Fully Applicable: Trinity involved a condominium scenario where owners benefited from central services (even if mismanaged). In Jolly Harbour, many owners have not received services, or infrastructure was nonfunctional. If a parcel sees little or no benefit, the "Trinity" ruling—where services were indisputably provided—does not conclusively apply.

(ii) [REDACTED] v Caribbean Development (Antigua) Limited ([2017] ECSCJ No. 355)

  • Hill & Hill's Use: They highlight that the court recognized an owner's obligation to pay some form of community charge.
  • Why It's Not a Blanket Enforcement: The court also acknowledged that owners must "accept the Agreement" and "benefit" from the services. If your parcel did not genuinely benefit, you can still argue that relevant charges fail the covenant test. This prior case did not eliminate the covenant's "benefit" standard.

(iii) Westerhall Point Residents Association v Batihk ([2016] ECSCJ No. 79)

  • Hill & Hill's Position: Westerhall shows that a positive covenant can require owners to pay for shared services.
  • Counterpoint: The key was that the owner used the association's roads daily. By analogy, if a Jolly Harbour parcel did not utilize or benefit from certain large-scale expansions, or if sewage and roads remained defunct, Westerhall favors the freeholder's right to dispute charges that are not truly "services to and for the benefit" of the property.

5. Additional Legal Principles Favoring Owners

A. Reasonableness and Direct Benefit (Waaler v Hounslow LBC [2017] EWCA Civ 45)

British courts emphasize that any cost passed on to owners must be:

  1. Reasonably incurred
  2. Providing measurable benefit

If CDAL lumps in major capital upgrades or repair costs caused by CDAL's own prior neglect, that may not meet the reasonableness test. The same principle applies under Antiguan law (see Coleman ruling, among others).

B. Unjust Enrichment

Should CDAL charge owners for non-provided or inadequately provided services, or for the developer's own deficits, the law of unjust enrichment can support partial or total refunds, especially if infrastructure "owned" by CDAL has not tangibly aided certain parcels.

C. No Blanket Exemption from Challenges

Hill & Hill's opinion suggests that, even if CDAL breaches its obligations, owners must still pay. In practice, owners can pay for the undisputed portion but challenge or withhold fees for services never provided, especially where the covenant is explicitly "parcel-benefit" based.

6. Template Letter

Date Your Name & Address CDAL Management & Hill & Hill Subject: Challenge to Hill & Hill Legal Opinion on Community Charges Dear [CDAL / Hill & Hill], I write to formally challenge the opinion by Hill & Hill, Re: Caribbean Developments (Antigua) Limited ("CDAL") - Restrictive Covenants - Application of Community Charges, dated 26th July 2023 ("the Opinion") regarding my alleged obligation to pay community charges. I respectfully disagree with the conclusions drawn in that Opinion for the reasons set forth below. Specifically, I contest the blanket assertion that all community charges are automatically enforceable, notwithstanding the fact that my parcel was either unoccupied for a substantial period or received subpar services not truly "provided to and for the benefit" of my land. 1. Land Transfer Covenant: Services "To and For the Benefit of My Parcel" The cornerstone of my Land Transfer covenant states that any monthly maintenance (community) charge must be "levied for and expended upon the services provided to and for the benefit of the above-mentioned parcel." This language imposes a clear, direct-benefit requirement. Where the parcel was unoccupied or where I did not receive tangible benefit (e.g., the infrastructure was nonfunctional, water/power were not used, or the property remained an empty lot), the principle of levying broad-based charges runs contrary to the plain meaning of our agreement. 1. Subpar Services and Non-Utilization • Infrastructure Deficiencies: Much of the "infrastructural maintenance" invoked by Hill & Hill's Opinion failed to materialize or remained severely inadequate (e.g., repeated sewage issues, broken streetlights until late 2024, etc.). • No Usage of Certain Amenities: The Opinion itself concedes that arguments about non-use may carry less weight if the agreement clearly ties charges to the availability of services. Yet, my Land Transfer explicitly requires charges be "expended upon the services … to and for the benefit of my parcel." If no demonstrable benefit exists, levying charges contradicts the covenant. 2. One-Sided Determination of Parcel Benefit The Opinion overlooks the fact that CDAL unilaterally deciding what benefits my parcel does not align with the covenant's plain wording. Under British common law (see Waaler v Hounslow LBC [2017] EWCA Civ 45) and Antiguan jurisprudence, service or maintenance fees must be both reasonably incurred and demonstrably beneficial. Hill & Hill's cited precedents (e.g., Fluor Daniel Properties Ltd v Shortlands Investments Ltd [2001]) do not negate the requirement that any replacement or improvement costs be necessary and beneficial. If equipment or services remain substandard, the burden is on the managing entity (CDAL) to prove they conferred an actual, direct benefit. 2. Applicability of Hill & Hill's Referenced Cases Several cases cited in the Opinion rely on contexts where tenants or owners explicitly agreed to a "pay now, argue later" mechanism, or where the building was a condominium subject to shared obligations. My parcel, by contrast, is governed by a restrictive covenant narrowly tying charges to actual benefit. 1. Trinity Investment Case ([2016] ECSCJ No. 152) • In Trinity, owners withheld fees while still benefiting from essential services in a condominium. My situation differs: a large portion of the time, no or minimal benefits were provided. I did not actively enjoy the infrastructure that presumably justifies these charges (e.g., no use of water/power, no functioning lighting). 2. Westerhall Point Residents Association v Batihk ([2016] ECSCJ No. 79) • In Westerhall, the court found a positive covenant enforceable because the owner used the estate road daily. By contrast, my dispute concerns charges for amenities or facilities that remain nonfunctional or irrelevant to my parcel's enjoyment (e.g., sports facilities, neglected water lines). The "direct usage" or "benefit" condition that anchored Westerhall was not met. 3. Legal Principles of Reasonableness and Direct Benefit Antiguan and British contract law both embrace the principle of reasonableness in imposing service or maintenance fees: • Reasonable Standard of Service: Hill & Hill references Fluor Daniel Properties Ltd v Shortlands Investments Ltd [2001], where the court held that even a broad covenant for service charges must reflect necessary or beneficial works. Nonessential or speculative work cannot simply be passed on to owners. • Common Law Doctrine of Unjust Enrichment: If fees are charged with no corresponding benefit, retaining those payments may constitute unjust enrichment. This contravenes the covenant's direct-benefit requirement. 4. No Automatic Obligation for Non-Beneficial Charges Contrary to the Opinion's conclusion, Antiguan courts have not categorically barred owners from challenging community charges when the requisite direct benefit is lacking. The Opinion heavily relies on general statements that owners cannot unilaterally withhold charges for minor grievances. However, the consistent thread throughout these cases is that the charges must be reasonably incurred for the parcel's benefit. My primary objection is that for much of the time, the services were nonexistent, inadequate, or not used. 5. Formal Request A. Account for Periods of Non-Benefit and Non-Usage I respectfully request CDAL: 1. Itemize any past fees charged to my parcel, specifying the corresponding benefit provided at that time (e.g., maintenance logs, security patrol records, infrastructure updates). 2. Credit or refund fees levied during extended periods where my lot was unoccupied, or for services plainly absent or nonfunctional, with interest. B. Adjustment of Future Charges I further request a clear, legally grounded breakdown of future charges that aligns with the Land Transfer covenant. This breakdown should: 1. Exclude all costs for facilities or services not tangibly benefiting my parcel (sports amenities, private offices, unutilized utilities). 2. Demonstrate item-by-item correlation to essential infrastructure directly serving my property. 6. Conclusion While I acknowledge there is a restrictive covenant requiring some level of maintenance charge, that obligation remains contingent on actual benefit to my parcel. The Hill & Hill Opinion overlooks this critical requirement. I dispute the notion that I must pay for broad, indiscriminate expenses whenever CDAL deems them "community charges." Such an interpretation flies in the face of both Antiguan contract law and British legal precedents on the reasonableness and direct benefit of service fees. I therefore request a formal, detailed response within 14 days. Should CDAL maintain its stance without providing the necessary evidence of direct benefit, I am prepared to pursue all available legal remedies to ensure that the restrictive covenant is enforced according to its plain wording and the mutual intent of the parties. Thank you for your attention to this matter. I look forward to resolving these issues in accordance with the terms of our agreement and applicable law. Sincerely, [Your Name & Signature]

7. Action Steps for Owners

  1. Gather Evidence
    • Document periods where your parcel saw no usage or no functioning infrastructure.
    • Keep records of maintenance shortfalls, sewage overflows, water/power non-usage, etc.
  2. Request Specific Clarifications from CDAL
    • Demand itemized budgets, logs of security patrols, sewage maintenance reports, or road upkeep.
    • Press for an annual or monthly breakdown verifying that each cost truly "benefits" your parcel.
  3. Coordinate with Other Owners
    • Collective challenges may help share costs and underscore how widely the Hill & Hill opinion overlooks actual covenant terms.
  4. Consider Legal Counsel
    • If disputes persist, consult an Antiguan attorney with experience in property, covenant, or service-charge litigation.

8. Conclusion

While Hill & Hill's July 26, 2023 opinion offers a broad justification for CDAL's "community charge," it does not negate the direct-benefit requirement rooted in Jolly Harbour's Land Transfer covenants. Owners whose parcels:

  • Were unoccupied,
  • Received substandard or no infrastructural upkeep, or
  • Did not utilize the alleged "services"

retain legal grounds to challenge or withhold portions of fees that fail the covenant test. The critical takeaway is that Hill & Hill's references to various legal precedents do not provide CDAL with carte blanche to levy charges if the essential "benefit of the parcel" element is missing. By following the recommended steps—gathering evidence, seeking itemized breakdowns, and if necessary, pursuing legal action—Jolly Harbour owners can ensure the covenant's language is respected, and only truly beneficial charges are levied.

HILL & HILL OPINION (Excerpt)

"Community charges are not expressly limited to maintaining certain common areas… Even if CDAL is in breach of its duty, there is no automatic right for homeowners to refuse to pay community charges… even if the restrictive covenant wording does not expressly apply, if the homeowner benefits from the services, CDAL can still seek to recover."

Owner's Response:
While the covenant does not state "maintenance only," it does say that charges must be used for services benefiting each parcel. If I, as an owner, received no such benefit, the broad wording cannot override the covenant's essential requirement. Any contradiction to that principle or assumption that "benefit" is presumed—regardless of actual conditions—goes against both the literal covenant terms and existing jurisprudence on reasonableness and direct usage.