By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A western New Providence gated community is battling a furious revolt by a group of homeowners who are accusing it of seeking to ban Airbnb-style short-term vacation rentals within its walls.

Legal documents obtained by Tribune Business reveal that an 11-strong homeowner group at Delaporte Point, the gated community located next to Poop Deck West, have initiated Supreme Court action against its homeowners association for “unlawfully and wrongfully” interfering with their rights as private property owners to lease out their homes as they so desire.

And they have obtained an injunction Order from Justice Darron Ellis that prevents the Association “from seeking to enforce any fines or penalties” on those involved in short-term rentals of their properties 

“by disconnecting the water supply of the claimants or any other means” until the substantive trial is heard and the dispute resolved.

Tribune Business has seen documents alleging that some homeowners have incurred fines of up to $20,000 imposed by Delaporte Point Ltd, the homeowners association, for alleged violations of rules and restrictions seeking to curb short-term vacation rentals within the community. The penalties purportedly include a $1,000 fine per breach plus a “retroactive $400 fee” for each short-term rental.

However, Delaporte Point Ltd has hit back through its own Supreme Court filings and correspondence. It asserts it is merely acting in the best interests of all property owners “to maintain the safety, integrity and harmony” of the entire community by preventing it from becoming a “hotel resort” as a result of being overrun by short-term vacation rentals.

The Association, in an October 10, 2024, letter to all homeowners accused the 11-strong group of being “renegades” and “openly defying the decisions made by a clear majority of the Delaporte Point owners” to “phase-out” and eliminate short-term vacation rentals.

It added that “numerous issues had arisen” as a result of properties being leased short-term, including safety and security problems plus noise and nuisance from partying vacationers. Delaporte Point said these concerns were underlined by “the recent tragic drowning of a young Bahamian boy” at the community’s pool after he was left unsupervised while visiting a short-term renter.

The dispute underlines the multiple concerns and conflicts resulting from the ever-growing expansion of Airbnb, VRBO and other vacation rental-style properties throughout New Providence and other islands. These are unlikely to be confined just to Delaporte Point, and other gated communities may well experience similar tensions between owner-occupiers and persons acquiring homes as investment properties to rent out.

A spokesman for the 11-strong homeowner group declined to comment on the basis that the matter is still before the Supreme Court. However, Sonya Alvino, April Ann Hubal, Richard Touchette, Catherine Yaque, Kenneth Cardillo, Rebecca Ganinza, Loretta Garrison, Tammy Maiscotte, Jukka Efraimsson, Peter Grantham and Shri Klessig asserted that the restrictions have caused them “financial hardship”.

They are seeking 15 separate Supreme Court declarations and Orders, including that Delaporte Point Ltd “has no power, right, authority or jurisdiction to impose any restriction” on how they, their guests and visitors use their properties other than the community’s shared amenities or common spaces. They are also asserting that rights vested in themselves as homeowners must “extend to and be enjoyed” by their tenants.

Other declarations largely seek to have all Delaporte Ltd’s restrictions determined as “wrongful and unlawful” by the Supreme Court, with all fines and penalties impose for short-term rentals “set aside and discharged”. The 11-strong homeowner group, in their Supreme Court standard claim, asserted that as owners they “have the right... to rent their house for any such period as they solely determine in their absolute discretion”.

They alleged that the dispute’s roots date back to July 2021, when an extraordinary general meeting (EGM) of Delaporte Point homeowners discussed limiting short-term rentals to a minimum 13-night duration. Prior to the meeting, the opinion of homeowners on short-term rentals was canvassed, but the 11-strong group asserted that the “poll” results and outcome were never made public.

Delaporte Point Ltd allegedly announced its decision to impose the ‘13-night’ minimum one month later, on August 4, 2021, and said it would be drafting rules and regulations to enforce this. These, including the $1,000 fine for violating short-term rental restrictions, were introduced in March 2022.

The 11-strong homeowner group asserted that it had “no input and were not consulted” on the new rules, which were allegedly expanded in October 2023 to include a $400 “per stay” charge and the wearing of badges and bracelets for short-term renters wishing to use Delaporte Point’s amenities. And, in a further change the following months, short-term renters and their guests had to exit these amenities if there was “overcrowding”.

“In July 2024, the defendant purported to impose a 90-day minimum rental period for the short-term rental in the community effective September 1, 2024, unless it can be shown that the rental is an existing booking by August 1, 2024,” the homeowner group alleged.

“No new or existing short-term rentals (less than 90 days) were to be allowed after September 1, 2024. The effect of the purported decision is to eliminate short-term rentals of houses in the community... The new rental rules and restrictions were made and designed with the sole intent of eliminating short-term rental of houses in the community and have imposed financial hardship on the claimants as owners of houses.

“Moreover, the rules were made by the defendant [Delaporte Point Ltd] with the sole intent of depriving each of the claimants of their right to enjoy their freedom of ownership of their property, and amounts to an unlawful and wrongful deprivation of their constitutional and fundamental rights to their property.”

The 11-strong homeowner group added that the short-term vacation rental prohibition, and associated rules, are tantamount “to the imposition of a restrictive covenant in the deeds and conveyances” to their respective homes after they had purchased them. And they asserted that the absence of such restrictions when they bought into Delaporte Point meant each had a legitimate expectation they could engage in vacation rentals.

Delaporte Point Ltd, though, in its defence asserted that “reasonable consultation” was carried out over restrictions that were “voted on by the community”. It added that the 13-night minimum was designed to “reduce the transient non-domestic and commercial hotel-type use” of the community’s amenities, while the $1,000 fine was intended “as a deterrent and to encourage compliance with the rules”.

The homeowners association, though, “denied that the effect of the decision is to eliminate short-term rentals of houses in the community”. Rather, it said the move “is to eliminate use of the amenity areas, including the access roads” in the western New Providence gated community.

“The rules were reasonably enacted to restrict the access for purposes of domestic use, and to address the significant impact that transient hotel type rentals have on the use, enjoyment and character of the amenity areas as well as the security risks and increase in cost for the provision of services,” Delaporte Point Ltd asserted.

“Airbnb and hotel type rentals of the type restricted by the rules and regulations imposed by the defendant have not been ‘a part of the custom and usage’ of Delaporte Point. The defendant has long had the authority to implement rules to govern the use of the amenity areas including the access roads.....

“In fact, many of the properties within Delaporte Point were being used for commercial hotel type activities which were inconsistent with the requirement that access over the roadways and use of the amenity areas be for domestic purposes and not otherwise.”

Asserting that it has the authority to implement the rules complained about, Delaporte Point Ltd added: “The defendant maintains that the restrictions and regulations are reasonable and necessary to ensure the community’s security, and to mitigate risks associated with transient occupancy, which has led to dangerous and disruptive behaviours and unauthorised use of the amenity areas.”

However, the 11-strong homeowner group, in an October 2, 2024, letter to all other Delaporte Point residents, disputed the Association’s “legal authority to impose arbitrary fines and fees” as well as the short-term rental restrictions. It had allegedly sought to impose fines ranging from $1,000 to $20,000 on them, and given them two weeks to pay.

They also argued that the fines and penalties violated the Companies Act’s section 280, which prohibits companies from taking action which is oppressive, unfairly oppressive or unfairly disregards the interest of shareholders such as the members of Delaporte Point Ltd. 

However, Delaporte Point Ltd hit back eight days letter on October 10, 2024, by asserting: “Despite a clear annual general meeting (AGM) mandate, a small minority of townhouse owners continue to disregard the rules by repeatedly advertising their properties for as few as seven nights, openly defying the decisions made by a clear majority of the Delaporte Point owners.

“A few defiers are even advertising two or three-night minimum stays on platforms like Airbnb and VRBO..... Rather than electing to comply with the mandate of the AGM, 11 owners in our community, who have been engaged regularly in short-term rentals over the recent years, who are disgruntled and do not want to abide by the community rules, have elected to take legal action against Delaporte Point Ltd.”

The 11-strong homeowner group, though, accused Delaporte Point Ltd of seeking “to shame and ridicule us for initiating legal action concerning our rights as homeowners and the newly-imposed rules and restrictions”. They added that a US attorney specialising in homeowners association law, as well as Raynard Rigby KC, has been hired to represent them.