A whiteboard sign on display in Randyke Gardens has a handwritten message urging “all proprietors and tenants” to pay their wastewater bills: “Sewage is overflowing!!! Our home is [filthy] and stink!!!”
For the second time in four years, the Water Authority is preparing to perform major emergency repairs – at Government expense – to the wastewater system at the east George Town development, where raw sewage has been discharging onto the ground for at least nine months. The scope of the repairs is not yet known, but the cost to install a new wastewater system in December 2007 was more than $440,000, in the form of a Government loan. As in 2007, the cause has been identified as negligence on behalf of the Randyke Strata, which appears to be in disarray.
‘Chronic wastewater violations’
According to information provided by the Authority’s deputy director, Tom van Zanten, Randyke Gardens “has suffered from chronic wastewater violations since two years after its development in 1990, up until today”.
From 1992 to 2006, regulatory agencies such as the Authority, Department of Environmental Health and Planning Department attempted to address the failure of the 80-unit development’s original wastewater systems, which the Authority described as being “of poor design and substandard installation” and incapable of being maintained – compounded by the fact that Randyke Gardens is in a low-lying area subject to frequent flooding.
“Various managers and Strata representatives cooperated in the efforts of Government agencies; however, they have lacked the broad-based support from apartment owners to deal with the matter in a meaningful and lasting manner,” according to the Authority’s document.
“In 2006 when the problem reached a crisis point – raw sewage pooled around buildings and flooded into the buildings – Government interceded with an extraordinary measure, agreeing to loan the Strata the money to replace the failed wastewater treatment system.”
As of press time, the Financial Secretary’s Office had not responded with information requested about whether the Strata paid back the 2007 loan.
The Authority monitored the new system for more than a year after the installation, and assisted with maintenance at no cost to the Strata during that time.
“It was strongly recommended that the Strata contract with a qualified technician / company to maintain the systems. However they did not do so,” according to the document.
The 2008-2009 budget shows a $20,000 loan from Government to the Randyke Strata for installing a new wastewater treatment system.
In January 2011, the Department of Environmental Health received complaints of raw sewage at Randyke. The Authority confirmed that two of the eight wastewater systems (installed in December 2007) were discharging raw sewage onto the ground. The Authority issued the Strata two notices of violation, but required responses were not received.
The Authority then contacted Leticia Catanghal, who was the Strata’s last recorded chair. “She indicated that she was resigning her Strata position due to frustration that efforts to address the many problems at the Strata were futile as the majority of owners did not participate in, or support the efforts, and the Strata’s financial situation was in deficit, she asked for Government assistance to solve the problems,” according to the document.
“The eight wastewater systems that were installed in 2006 are properly designed and properly installed. If operated and maintained properly, they will treat sewage to the standard of the Water Authority. What went wrong is that the Strata did not enter into a contract with one of the private service providers to maintain the systems, the systems were neglected and parts started to break down but no repairs were carried out,” according to the document.
In February, the Authority sent a background and history of Randyke violations to the Ministry of District Administration, Works, Lands and Agriculture, requesting that the matter be turned over to the Attorney General for prosecution for violating the Water Authority Law (discharge of raw sewage onto the ground). For that violation, the Law prescribes a penalty of a fine of $6,000 and one year’s imprisonment.
“However Government decided that rather than prosecuting the Strata it would be better to provide the Strata with assistance to carry out the necessary repairs to the wastewater treatment systems. Government agreed to provide the necessary funding to contract with a qualified company for the emergency repairs and upon completion of the repairs the Strata would be responsible to contract for upkeep and maintenance of the systems,” according to the Authority’s document.
Before undertaking emergency repairs, the Authority required Ms Cargill and current Strata chair Mitchell Bodden to sign a contract relieving the Authority of liability for undertaking the repairs, and agreeing to sign an annual contract with a service provider to carry out maintenance in the future.
According to the letter from the Authority to the Strata leaders, “The emergency repairs of the failing wastewater treatment systems at Randyke Gardens will be carried out by the Water Authority, on behalf of the Government of the Cayman Islands.”
The presence of raw sewage at Randyke Gardens threatens the health not only of tenants, but also Authority employees, who, for example, visit the site each month to check water meters.
It is highly unusual for strata management to be so neglected that wastewater systems do not undergo regular maintenance, said Daniel Priestley, Director of law firm Priestleys Ltd, whose areas of specialisation include strata law and practices. However, Mr. Priestley said weakness in Cayman’s strata law – where power and responsibility of strata management is in the hands of property owners – is what allows a situation like Randyke Gardens to arise.
“Fortunately it is not common that the strata is so neglected that there is nobody looking after things,” he said.
Ultimately, the individual owners of Randyke Gardens are responsible for violations occurring at the development due to mismanagement.
“It is almost certainly going to be the strata corporation’s liability and ultimately the owners of the strata lots,” Mr. Priestley said. (He added the caveat that he was speaking generally about Cayman strata law and not giving his opinion on the particulars of Randyke Gardens.)
“The strata corporation will be liable. Any judgment will have to met by the proprietors. Whether or not they choose to involve themselves in the dealings of the strata corporation is irrelevant. They will be liable,” he said.
Mr. Priestley said, “Obviously the proprietors would be well-advised to take the situation in hand and not just allow it to drift on and on and on.”
Responsibility would even fall to brand-new owners just buying into a strata that has been negligent and has outstanding liabilities, he said.
“Anyone thinking of purchasing a unit there would be well-advised not to buy into such a situation,” he said.