Editorial | Gated and or not!

Judgment in favour of the Wellington Glades couple who challenged their citizens’ association by refusing to pay maintenance fees has created a stir within the gated community which has been gaining momentum all over Jamaica.

The case initiated by the citizens’ association has been going on since 2019, and ended recently with the judge declaring that the Wellington Glades Citizens’ Association was not a legal body and therefore could not compel residents to pay maintenance fees.

The association argued that various services are provided for the complex which are covered by fees charged to residents. But the couple countered that they stopped paying in 2019 because the complex was not being properly run.

Many argue in social media commentary that such a case was ripe for the court’s consideration, given that several associations are facing similar resistance from residents, and many have recorded high levels of delinquency. Even with the legal arguments about what constitutes strata titles and concerns about whether the association is a legal entity, it seems to us that, at the heart of the matter, is the issue of accountability.

The commentary ignited by the outcome of this precedent-setting case ranged from glee for those who feel that citizens association are too autocratic and far from transparent, to fear that the ruling may open the floodgates to more challenges by homeowners. Frankly, we would not be surprised if the result is a rash of litigation following this decision.

NOT A NEW CONCEPT

The concept of gated communities is not new, indeed it goes back to ancient times when medieval walled cities were created to protect their citizens and life was lived in full behind the walls. These were complete cities. One of the first gated communities in America was identified in New York, during the 19th century when the wealthy wanted to insulate themselves from the struggling poor. Nowadays, gated communities are commonplace.

With ballooning crime, they have become the alternative for Jamaicans seeking respite from the criminal elements, be they town houses or apartments. This lifestyle, which offers an array of services, appeals to persons who crave privacy, insulation from certain noises, and who do not want to be bothered about issues like landscaping or securing reserved power. But they must comply with all the relevant covenants, conditions and restrictions which may even include any kind of improvement to an individual unit.

As is expected, all these amenities come with a cost, and usually it’s the homeowners’ association which sets a fee for the upkeep of common areas and all the services which are offered. Delinquency can extend for long periods. In frustration, some complexes have resorted to drastic actions such as posting the names of delinquent owners and the amounts they owe, while others have withheld common services from those who fall behind in their payments. In contrast, some properties use the services of property management companies who are accountable to homeowners on a timely basis, and they appear to be well-run.

Homeowners’ associations, or by whatever name they are called, should act within the law as they seek to represent communities. We believe homeowners do have a right to get an accounting of how their fees are spent. They also ought to be provided with justifications for any new cess or increased maintenance charges. There is also a duty of care when it comes to homeownership, and it seems fair that, even when challenging an action, homeowners should pay the fees while awaiting decisions.

Gated communities with their manicured lawns and well-maintained grounds cannot be kept in pristine condition if owners do not pay to have these services provided.