The chief justice has ruled that the owners of Windsong Villas in West Bay were entitled to erect a gate preventing residents and guests of neighbouring Boggy Sands Club trespassing on their property to get to a nearby private beach.
Boggy Sands Development Limited, owned by Morne Botes, brought the case to court, claiming that its right of way had been blocked by the Windsong strata, which had placed obstacles – a fence, a rolling gate, foliage and vehicles – along a vehicular and pedestrian access road.
The court heard that the Boggy Sands Club development consists of three parcels, described in the court documents as the West Lot, the East Lot and the Pool Lot. Only the unoccupied Pool Lot has a legal right of way over the Windsong property to Boggy Sand Road, to the south.
According to the judgment, the dispute arose because the Pool Lot’s right of way was being used by the owners and guests of Boggy Sands Club’s West and East Lots to access a private beach on Boggy Sand Road, which was acquired for the use of the club’s guests – most of which are short-term vacation renters.
The court heard that the West and East Lots had been undeveloped parcels of land until the condo resort was built.
“The increased foot and vehicular traffic over the right of way since it has been developed
has been the source of much consternation to the owners of Windsong, not least because
many of the holiday makers veer off the driveway built over the right of way and on to the
owners’ private property and otherwise make a nuisance of themselves,” Chief Justice Margaret Ramsay-Hale wrote in her judgment, which was delivered on Friday, 13 Sept.
She noted that, in order to “preserve their peace of mind, the residents of Windsong erected a gate for the purpose of indicating to the guests of the condo resort that the property they were traversing was in fact private property and not a part of the condo resort”.
In response to the erection of the gate, the Boggy Sands Club developer began legal proceedings, seeking a declaration that the condo residents were entitled to vehicular and pedestrian right of way and uninterrupted passage over Windsong. The developer also applied for injunctions to restrain the owners of Windsong from interfering with the right of way and to compel them to remove the gate.
Lawyer James Kennedy, acting for Windsong, argued that Boggy Sands Club were wrong to extend the Pool Lot’s right of way over Windsong to the West Lot and East Lot.
At one point, before it was subdivided in the 1980s, the land on which Windsong and the Boggy Sands Club are situated was a single plot that ran from West Bay Road to the beach at Boggy Sand Road.
During his evidence in the hearing, which was held in June, Botes said his understanding was that all the parcels in the original sub-division enjoyed reciprocal rights of way over each other.
The judge, in her ruling, noted that as no one occupies the Pool Lot, it is “common sense” that anyone entering Windsong from the Pool Lot from the north travelled from either the West Lot or the East Lot, and that their use of the Windsong driveway to get to the Boggy Sand Road was a trespass.
“The use of the Windsong driveway to access the West and East Lots after a day at the beach was equally unlawful,” she said, adding, “It follows then that Windsong was entitled to erect the gate to ameliorate the trespass over the right of way by the Plaintiffs and everyone claiming through them to be entitled to use the right of way.”
She stated that she considered that Windsong “is entitled to fence their entire boundary with the Pool Lot to guard against any continuing trespass by persons entering the Pool Lot from the condo resort”.
Related Videos
