The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A seven-year saga over the ‘common areas’ in one of New Providence’s most luxurious subdivisions is set to climax at a January 27 vote, amid homeowners’ objections to the developer’s planned marina.

Tribune Business can exclusively reveal the protracted negotiations over deeds that would transfer the title to Old Fort Bay’s ‘common areas’ from its developer, New Providence Development Company, to the Property Owners Association (POA) - a transfer that technically should have occurred as far back as July 2006.

Three different versions of the title deeds were passed between New Providence Development Company and the POA last year alone, and Old Fort Bay homeowners will be asked on January 27 to vote whether to accept the latest version.

However, differences have arisen between the two sides as to exactly what should be transferred over to the POA, with some homeowners fearing the developer is “whittling away” the common areas so it can retain more land.

And another issue of contention is New Providence Development Company’s now-approved plans to build a marina at Old Fort Bay.

Some members of the Old Fort Bay POA fear the project will be a ‘commercial marina’, which will totally change the western New Providence subdivision’s character and ethos as a ‘private gated community’.

However, Tribune Business understands that New Providence Development Company’s position is such fears are overblown, as the marina is merely an expansion to meet extra demand for boat slips from both POA and Old Fort Bay Club members.

This newspaper has seen numerous documents that have passed between the two sides over the past seven years, after the ‘trigger’ for the common area handover to the POA was reached on July 1, 2006.

The ‘trigger’ was pulled when New Providence Development Company’s subsidiary, Old Fort Bay Company, hit the agreed threshold of having sold 60 per cent of the 179 available lots (173 have now been sold).

At that point, the POA’s Articles of Association required that New Providence Development Company both transfer over title to Old Fort Bay’s common areas and the ‘Class A’ shares it held in the POA.

While Tribune Business has seen documents confirming that New Providence Development Company transferred the Class A shares to then-POA chair, Dr Harold Munnings, on October 1, 2009, the ‘common area’ transfer has taken much longer.

Alistair Henderson, New Providence Development Company’s president, declined to comment when contacted by Tribune Business, and no Old Fort Bay homeowner was willing to speak ‘on the record’.

However, speaking to numerous sources under the condition of anonymity, and analysing numerous documents obtained by this newspaper, an accurate picture of recent developments has been obtained.

“We’ve been disappointed in the developer in some of the things they’ve proposed regarding the handover,” one homeowner source told Tribune Business.

“For such a prominent developer and community, I would have thought this would have been a straight forward issue, but it hasn’t been straightforward.”

The source added that what constituted ‘common area’ in Old Fort Bay - the likes of the roads, waterways, canals and green spaces - was “the crux of the matter” between the homeowners and New Providence Development Company.

“What we understand is common area is being whittled away,” the source said. “I believe the developer wants to take what ought to be common property and retain control of the development.”

This is backed by documents seen by Tribune Business.

An October 4, 2013, legal opinion for the POA by Vanessa Carlino, of Carlino & Company, said of the latest ‘common area’ transfer deed: “The current plan seeks now to incorporate property previously identified as Association property into developer-retained property.....

“The current layout denies the Association access to roadways in order to maintain utilities which service Association members.”

And Ms Carlino also warned that New Providence Development Company wanted to “restrict the manner in which the Association deals with common areas”.

This, she added, meant that ‘common areas’ could only be developed with either New Providence Development Company’s permission or payment to it of a fee it will “arbitrarily determine”.

“It is unreasonable in all circumstances for the developer to impose on the Association an obligation to pay an unspecified sum for property that will be conveyed to the Association, and the Association will therefore own,” Ms Carlino said.

“The Association should, in their absolute discretion be permitted to alter Common Areas/Green Spaces as they, in their sole discretion, see fit. The current wording gives the Association no autonomy to govern property owned by them.”

New Providence Development Company’s position, though, is that the ‘common area’ plans many homeowners are relying upon - and which were attached to their original conveyances - are incorrect.

Those plans were “never agreed or finalised”, this newspaper was told, and there had been “miscommunications” as to the property New Providence Development Company owned and what constituted ‘common areas’.

And the developer is also understood to feel that given it will still own assets inside Old Fort Bay - namely the marina and Old Fort Bay Club - it needs to have some control/influence over the community’s development to preserve the value of these facilities.

The ‘common area’ differences have, meanwhile, been given added spice by New Providence Development Company’s marina plans for Old Fort Bay.

Ms Carlino’s October 4 opinion makes clear that she, on the POA’s behalf, formally wrote to the Ministry of Works objecting to the proposed marina.

Tribune Business has confirmed that the marina project has been formally approved, but Ms Carlino’s opinion said “there is no provision or intention” in homeowner conveyances for such a development.

“The developer has, despite numerous requests, failed to provide a copy of the marina development,” Ms Carlino wrote in her November 13 opinion.

“The community cannot agree to a marina development without knowing the full extent of that development and the proposed purpose of that development.”

While acknowledging that New Providence Development Company had denied it was a ‘commercial marina’, Ms Carlino added: “Our investigations with the Ministry of Works reveal, however, that the proposed marina is intended to include dock slips large enough to accommodate boats up to 100 feet in length, and no boat smaller than 60 feet.”

Describing the draft deed as “entirely insufficient” when it came to the marina, Ms Carlino argued that it should include New Providence Development Company’s management and operational responsibilities for the facility.

And, she said, it should also deal with the environmental, security and garbage disposal issues marinas typically create.

Tribune Business sources, meanwhile, backed up New Providence Development Company’s position that the proposed marina is not intended to be ‘commercial’.

They said it was merely an extension of the existing docks based on demand from both Old Fort Bay homeowners and members of the Old Fort Bay Club.

They acknowledged, though, that the marina was likely to be “a sticking point” between developer and POA/homeowners, with the ‘common area’ issues thought largely resolved.

Some homeowners, though, have expressed concern that they may be asked on January 27 to accept the marina as part of the ‘common area’ transfer vote.

“They have not released any of their development plans, and that ought to be part of the handover,” one homeowner source said.

Meanwhile, some homeowners suggested New Providence Development Company’s desire for ‘control’ extended to who should “come in and out” of Old Fort Bay.

Two separate legal opinions submitted to the POA by Ms Carlino, on October 4, 2013, and November 13, 2013, both refer to the proposed transfer deed containing restrictions on who can enter Old Fort Bay.

The October 4 opinion said New Providence Development Company’s proposal to “indemnify” the POA against legal action by persons denied entry contained “sufficiently vague terms” as to leave the Association exposed.

Instead, she suggested that the developer specify who should be refused access to Old Fort Bay, and allow the POA to join in any litigation stemming from such denials - rather than let this be conducted solely by New Providence Development Company.

Beach access for non-waterfront homeowners in Old Fort Bay is another issue. Tribune Business has seen documents suggesting that the ‘right of way’ to the beach ends at the Old Fort Bay Club, and to gain access persons have to pay to become club members.