Dec 21
The plaintiff was a body corporate comprising the proprietors of a residential apartment block in the Turks and Caicos Islands held under strata title whereby each proprietor held the individual freehold of his own apartment but, on the registration of the strata plan, collectively formed the body corporate which managed and controlled use of the block under byelaws specific to the block created for that purpose. Byelaw 7.1.9 prohibited any use of apartments save as a private residence but permitted their letting out from time to time for any period in excess of one month. The defendant owners of one apartment began letting it out for short term holiday lets of under one month and the plaintiff sought an order prohibiting such use. The judge refused the order on the ground that section 20(1) of the Strata Titles Ordinance prohibited any strata title byelaw from prohibiting the leasing of strata lots. The Court of Appeal of the Turks and Caicos Islands reversed that decision and granted the order sought, whereupon the defendants appealed to the Privy Council.
Held, appeal dismissed. The byelaws in terms described the apartments as intended for use as a residence. Byelaw 7.1.9 did not amount to a restriction on rental but allowed it provided the letting maintained the character of residential use. It had been common ground that a strata byelaw designed to secure restriction to residential use was in principle unobjectionable. Residential use required a degree of permanence, and an intent to use the property as a home. Use of a property for a few weeks’ holiday did not have that character. The byelaw did not involve an impermissible restriction on leasing contrary to section 20(4) (paras 16-20).
James Thom QC and Stephen Wilson QC (of the Turks and Caicos Bar) (instructed by Bircham Dyson Bell llp) for the defendants.
Guy Fetherstonhaugh QC, Conrad Griffiths QC (of the Turks and Caicos Bar) and Martin Dray (instructed by Sharpe Pritchard llp) for the plaintiff company.