Dart appeals not to be held by Britannia rights

| 11/05/2022 | 96 Comments
Cayman News Service

(CNS): A lawyer representing two of Dart’s multiple companies argued before the Cayman Islands Court of Appeal on Wednesday that his clients should not be held to homeowners’ rights made decades ago in connection with a hotel that no longer exists. Jonathan Seitler QC claimed that the trial judge had come up with unusual interpretations of the law in relation to the claimed rights of Britannia property owners when he found largely in their favour in the Grand Court last June.

In the latest legal step in a dispute that has stretched for over six years, the Dart Group is still fighting to free itself from obligations that the owners say the islands’ largest investor took on when he bought all of the property associated with the former Hyatt hotel and related Britannia and other developments.

When owners at what was the Britannia resort bought their homes in the 1990s, they also acquired access rights to the hotel’s many facilities, including tennis courts, a golf course, the pools and the beach. The hotel was badly damaged by Hurricane Ivan and the tennis courts were completely destroyed, but the beachside of the resort was quickly renovated as the Beach Suites. Owners then continued to enjoy the golf course, beach and remaining facilities until 2016, when Dart bought all of the properties.

Soon after the purchase Dart closed the golf course, and having taken over the Beach Suites hotel, redeveloped that under the new company, Palm Sunshine Ltd, as Palm Heights. Dart then filed a law suit to free itself from all obligations to Britannia owners and to prevent them from using the exclusive new hotel’s beach.

But last year the two Dart companies, Cayman Shores Development Ltd and Palm Sunshine, lost that claim when the judge found that Dart was still bound by the rights homeowners obtained when they bought their properties and the property company was obligated to provide beach access and a golf course to the owners.

However, they are appealing that judgment. Seitler told the higher court on Wednesday that the case was also about the integrity of the land registration system, as that should be the system that tells owners and buyers everything they need to know about the history of a property.

As a result of a factual but not legal mistake by the registrar, the Britannia easement and access rights were not properly registered, which has complicated the case, but the rights were still part of their purchase agreements and Justice Nicholas Segal found in June last year that the agreements were legally binding. He said the Dart companies had been unable to demonstrate that the rights were of limited duration and were not mere licences, as they had tried to claim when they closed the golf course and then denied the residents access rights to the beach.

However, during the appeal Seitler continued to argue that there was nothing to show that the rights were forever or what would happen if the hotel no longer existed. He said that the rights refer to the old Hyatt hotel and there cannot be an obligation for Dart to continue to offer access rights to something that does not exist. He suggested that if there is no hotel, the rights fall away and there is nothing in the agreements that addresses what happens when there is no hotel.

He said that the owners were under the assumption that they had acquired something of value with these rights when they bought their homes but really they had not because if the day after they bought their homes the hotel closed down, there was nothing in the agreements to say what would happen.

When asked by the appeal court judges if he was indicating that it was, then, just bad luck for the owners, Seitler said it was. “They were under the assumption they had something of value,” he said, adding “Without the hotel, they had nothing.”

The case continues on Thursday.


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Comments (96)

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  1. Anonymous says:

    Lets set the record straight XXXX. Dart purchased the property for an absolute knock down lowest of low value in 2016 with an intentional calculated strategy of changing the law and extinguishing the rights so that the property value would increase enormously in multiples of the purchase price.
    1) Dart well knew what he was purchasing way before he purchased the property.
    2) Dart wrote threatening letters to all the residents in 2016 tell them he was taking them all to court and extinguishing all the rights when he had not even purchased the property.
    3) Dart purposely kept the property in a derelict state for his case against the people arguing that the Hotel is out of business and therefore the rights do not apply.
    4) The other half of the hotel known as the Hyatt beach suites remains open and operating and is totally renovated with Dart changing the name of the hotel to disassociate the beach suites from the original Hyatt hotel which remained in a derelict state.
    5) During this time Dart built the Kimpton Resort, renovated the Ritz resort, purchased the Comfort Suites hotel and renovated the comfort suite to become the Hampton, and is now building the Indigo resort at the public beach next to the Kimpton.
    6) the closing of the golf course was times to supply the Kimpton with all the grass from the greens and tees of the golf course to the Kimpton.
    7) In six years Dart cannot even clean up and maintain or develop the old Hyatt Resort because he is using it in his argument in this case.

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    • Anonymous says:

      Sounds like you summed it up.

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    • Anonymous says:

      Like how you explain this.

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    • Anonymous says:

      Dart is trying everything, he is so wrong on so many levels . He wants to do another development on the golf course. That’s his agenda
      Plus he wants to charge a fortune to Britannia Residents to have beach access. But said that dose not include the use of the pool. Pure greed

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    • Anonymous says:

      Dart is trying everything, he is so wrong on so many levels . He wants to do another development on the golf course. That’s his agenda
      Plus he wants to charge a fortune to Britannia Residents to have beach access. But said that dose not include the use of the pool. Pure greed

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  2. Anonymous says:

    Who cares about this foolishness!

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  3. Casey says:

    “However, during the appeal Seitler continued to argue that there was nothing to show that the rights were forever or what would happen if the hotel no longer existed.”

    Welllllll…. the beach still exists so how you gonna deny them rights to that?

    Long story short… strip Dart of his papers and send him back where he came from. He wants everything and slowly but surely that’s what’s gonna happen if we let it.

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    • Anonymous says:

      Dart and his attorney are trying to change the centuries old common law principle of the “rights run with the land” therefore not whomever is the current owner.

      Established rights pass from owner to owner, even if that owner is Dart.

      Mr. Dart please stop trying to rewrite history.

      Mr. Dart please stop trying to take away our beach accesses.

      Mr. Dart your NRA agreement in 2011 with the Hon. McKeeva Bush and enhanced with Premier Alden McLaughlin still does not give you the right to draft and change our laws, that should and must only be done by the LA.

      Mr. Dart, leave our beaches alone or leave.

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      • Anonymous says:

        The buyer of any asset, be it a property, or business company, acquires all of the preexisting assets and liabilities of that entity “in kind” at closing. Buyer does not get to choose only the assets, or only the assets it likes, with discretion to cleave-off the responsibilities, duties, and expenses. This is why buyers conduct their due diligence thoroughly before any closing. DART, accustomed to having CIG officials in his back pocket, feels it is cheaper to bankrupt their opponents, bleeding them out on appeals and QCs, rather than being a good neighbour. This is the wrong partner for Cayman. Every time.

      • Anonymous says:

        Not all rights run with the land.

    • Gillian says:

      This man, Dart, has got all he wanted, whenever he wanted it, for the price he wanted to pay….time for reckoning, and yes, stop the rot now.

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    • Anonymous says:

      Nothing to suggest that subordinate property rights expire at the pleasure of a new landowner either.

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  4. Anonymous says:

    Urgency and necessity undermine values.

  5. Anonymous says:

    Disgraceful by Dart they are not what they pretend to be

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  6. Anonymous says:

    I wish to give my SUPPORT and RESPECT for Britannia homeowners.

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  7. Chris Johnson says:

    I wonder what the lawyers were doing when the development started selling the lots. Sounds like the agreements were not bulletproof for purchasers.

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    • Anonymous says:

      I advised my buyer clients that such “rights” were unique and untested in Cayman and that while there were arguments for and against their enforceability, I wouldn’t accept responsibility if they were found unenforceable.

      I added that if they weren’t satisfied with that advice, they should either withdraw from the deal or go to another lawyer.

      No one listened; they all still went ahead anyway.

      Exactly the same as the appalling, incomprehensible Ritz Carlton residences documentation.

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      • Junius says:

        Good to know. Your “buyer clients” might not appreciate you saying that though.

        Sure your are a lawyer? Attorney-client confidentiality/privilege? (Or, secrecy, in civilian law jurisdictions?)

        Mr. Chris Johnson, who is an accountant, is using correct standard legal terminology, but why aren’t you?

        In a property context the term is “purchaser” and in a commercial sales of goods context the term is “buyer”.

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    • Anonymous says:

      The Lawyers in those days lived in a world where honorable people would abide by the spirit and intent of a contract, not just the words.
      Contracts did not anticipate having to defend against a bottomless pit of avarice.

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  8. Anonymous says:

    Dart is the overlord. You lot are mere ants and should be grateful for the crumbs.

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  9. Anonymous says:

    I wish people would open their eyes and realise that Dart is not the philanthropic, caring entity that they think. He’s a vulture capitalist who has literally polluted the earth with the product that made his fortune.
    Nothing he has done in Cayman is philanthropic. Everything is calculated. But he built roads. Yes, to increase and serve his own land holdings. But he built Camana bay. Yes, a massive, a mixed use income producing scheme which sucked all the blue-chip tenants out of George Town.
    Yes, he might be able to toss a little bag of pennies for sponsorship here and there but it’s all PR.
    He found a place that could be bought easily and with intellectually stunted politicians. And he’s now so ingrained as part of the government that it’s too late to do anything.

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    • Anonymous says:

      Yes. Dart making billions and billions of cayman. Plus still owns Sterifoam company. All those disposable cups, plates, bowls are pollution. And he’s going bankrupt cayman government over dump agreement

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    • Anonymous says:

      It’s not too late for the courts to side with victims of bad faith.

      It’s not too late for a transparent government to review past unfinished deals with fresh eyes.

      It’s not too late for us to shift this entire artificial premise and misappropriated dynamic.

      Not too late for some corruption arrests either. Many of us would welcome them.

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      • Anonymous says:

        ‘Not too late for some corruption arrests either.’ In Cayman?! In the Lodge? You need to take a nap. It’s systemic.

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    • Kman says:

      Bang and right on the head. Dart, investing in restaurants in Cayman is just a vehicle tool of using many of his shell companies. He’s almost got a alcohol monopoly in terms of owning Blackbeard and before long he’ll get Jacques Scott,I strongly believe he owns Foster’s now.

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    • Gillian says:

      Agree totally with this statement. He takes for his own good, not for one minute does he consider his actions.Changing the infrastructure to suit him, never mind the environmental costs .

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  10. Anonymous says:

    I don’t understand the bigger picture. Remind me again what gives Britannia, Snug Harbor, and Canal Point value?

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  11. Anonymous says:

    It is a mess for sure and not clear at all which way it will go.

    In reality, how can you hold someone responsible for providing access to something that doesn’t exist.

    Equally, how can you deny someone the rights to something that is enshrined in law? (whether written or otherwise)

    interestingly, where does the liability end – for example if the original Hyatt developers sold properties and it turns out those rights/promises/whatever never actually existed, who’s liable now?
    Is it Original Hyatt, or is it the original condo owner who then sold to the current condo owner?
    is it the CIREBA broker who represented and marketed the condos as coming with all these rights?
    Is it the lawyer who didn’t perform proper due diligence on any sale?

    Its a total mess and i’d guess there are near 200 homes/condos in there…maybe every one of them has been sold at least once over time, many of them multiple times…a guess is 1,000 transactions in 25 years –

    and nobody spotted the issues? No CIREBA broker thought they better check what they are selling is factual? Enforceable?

    Who stands to win/lose?

    Interesting indeed….

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    • Anonymous says:

      Anyone with eyes can see that the hotel footprint does exist, and is being reserved. Emptying the rooms and opening to the elements, and ignoring reconstruction obligation to muddle the waters has been a strategy I hope DART are punished for, with interest, and penalties as the courts shall deem appropriate.

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    • Anonymous says:

      Britannia owners had access to the Beach which is still there, The Beach suites pool which is still there, the Gym which is still there, the golf course which is only in disrepair as dart striped out the irrigation system and stripped the grass from th tee boxes and greens to be used at not only the Kimpton but the private residence of an unnamed executive that works for Dart. The only thing that isn’t there is the tennis courts so its understandable that this access right was removed.

      Dart purchased the golf course land for $3per sqft. It was $3 per sqft because it had covenants on the land saying it had to be used as a golf course. Now Dart wants to remove these covenants and turn it in to building land. If that happens the land is Worth $60 per ft Thats an initial investment of $5.2m and if this appeal goes his way the land is now worth over $100m.

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    • Anonymous says:

      Whatever happened to the road compensation payout? didn’t Dart get that for the loss of the tennis courts? was that passed on to the Britannia owners?

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  12. Anonymous says:

    Once a vulture capitalist always a vulture capitalist. Remember his lovely president of Decco defending housing Indian project managers in pre-fab trailers on building sites? Yes, the same guy that is so proud of placing a concrete tunnel on West Bay road. There is a growing awakening against this ugly side of capitalism.

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    • Anonymous says:

      The worst breed of opportunist is one born into it. Inherited a contempt for humanity. Not even using his own money for this stuff. Flying around sucker investors in his helicopter. If we can’t see it now, then we are blind.

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  13. REB says:

    The Land is still there so they still have rights.

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    • Anonymous says:

      It’s up to the crown to defend enforce and protect landowner rights to support the entire real estate market. Everyone who owns land or property in the Cayman Islands should be sitting up in their chairs at this 6 year cautionary tale. It seems we still have a deeply conflicted government conditioned to peddling improper favour.

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    • Anonymous says:

      the land may well still be there but the physical attribute that produced the rights no longer exists in the same form as when those rights were conferred.
      Must confess though, my thinking lies with the original judgement. Rights continue as the asset may have changed hands but the underlying bricks and mortar remain..

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      • Anonymous says:

        Are those rights vanquished by an acquiring party refusing to faithfully restore the property and services in good order and in a timely fashion? 17 years of misdirection and illogical reasoning are being selectively applied. You’ll note DART have not torn down the original buildings and are reserving them. That says it all.

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  14. Anonymous says:

    Unbelievable. He thinks he is the NRA or government or something. Come to think of it, kind of like CIG taking away rights for Covid. One thing this has proved is once you allow your rights to be given/taken away, you rarely if ever will get them back unless through the court system.

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    • Anonymous says:

      CIG wish they were as effective as Dart. Look how long it took CIG to get the land for the Linford Pierson extension which is needed, as opposed to Dart getting half of SMB road and our public beach

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  15. Anonymous says:

    I can’t wait for the Britannia owners to have to pay for the upkeep of these “rights”, so the rest of us can use them at their expense.

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  16. Anonymous says:

    Dont worry folks he will win his appeal. Sorry Britnnia. Money talks

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  17. Anonymous says:

    Yet Dart is purposefully warehousing the derelict hotel grounds and buildings it claims have no value or don’t exist. Why would we trust these bad actors to manage a WTE facility? Once commissioned, what happens when they decide those obligations are too hard or inconvenient and then don’t exist or apply to them anymore? The cheapest and dumbest corporate actors in Cayman. No plan and diminishing stock. CIG needs to reframe it’s tolerance of the intolerable.

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  18. Anonymous says:

    The connection to the hotel is a red herring. The rights to access the golf course and beach exist regardless of whether a hotel exists or it doesn’t.

    BTW: The gym still exists and was used by Britannia owners right up until the day DART one day arbitrarily revoked access.

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    • Anonymous says:

      Dart acquired a hotel property that they chose to open to the elements rather than restore or fully condemn. A big missing piece is the $10k/day derelict hotel penalty that might have otherwise compelled the owner to rebuild. Pact should calculate how much is owed to CIG in back fees and collect it. It would be many tens of millions by now. Britannia owners should calculate how much this has cost them in deprived value due to inaction by previous supervising UDP/PPM/Unity regimes and sue the government to recover those costs. The wrong parties are being rewarded.

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  19. Anonymous says:

    The hotel and beach didn’t just disappear. Owners had rights taken away not blown away. Either the insurance company(s) backing claims on the related original Hyatt properties, or the owners of the subsequent enterprises acquired from those assets, owe the economic value or the continuation of rights. Dart controls those assets, it owes reinstatement or compensation for value lost in past use and future use.

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  20. Anonymous says:

    Remember, Dart fought against New York with law suits for years after the Cities decided it wanted to ban non-recyclable food containers. 🍲

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  21. Anonymous says:

    If Dart wants out, all he has to do is pay them out…it’s not like he’s hard up for cash.

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    • Anonymous says:

      Has anyone checked their cash situation? Seems to be courting a lot of foreign investors with helicopter flyovers.

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  22. Anonymous says:

    Rules for thee but not for me.

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  23. Anonymous says:

    So without the hotel the beach (and any rights to it) have disappeared? All of us have rights, DART, whether we are Britannia owners are not. Britannia owners however have more rights. This disdain for Cayman and its traditions (including as to free access) has to stop!

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  24. Anonymous says:

    Vote ppm back in…they pass law to run ya all out yur house to be sold to billionaires…

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  25. Anonymous says:

    CNS: do you know if DART has been paying any of the fines for leaving the old Hyatt is disrepair? Wasn’t it a large sum per day? If they haven’t has this Government or those before them done anything to collect the outstanding debt?

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    • Anonymous says:

      You people need to leave the Dart group alone because they do so much for Cayman. We would be nothing without Mr Dart. You will all learn your lesson now as they will show you all who is the boss!

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      • Anonymous says:

        Not naming names, but have you ever dealt with senior employees of Dart??? They prance around behaving like royalty, whereas in fact they are very devious and bullying. They hold the law and the rights of others in scant regard, always knowing they have deeper pockets than you to prevent you from protecting yourself. For all the good Dart seems to do, there others in his organisation that are, to put it simply, just toxic.

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      • Anonymous says:

        What a colonizer appeaser mindset. We would be nothing without DART? rubbish! He is trying to make Cayman another boring, ugly, Miami so he can achieve further millions in his construction business. He does not care about us, he only cares how to extract every last dollar from our noble people.

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      • Anonymous says:

        Nothing without Mr. Dart? You must be joking. We could all live without Camana Bay — most of us did for many years. We could all live with his hotels under different ownership. We could all live without that ugly overpass on West Bay Road. Get real. . .Cayman has done more for Mr. Dart than vice-versa.

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    • Anonymous says:

      $25,000/day

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    • Anonymous says:

      They haven’t paid a cent and gvt haven’t enforced it.

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    • Anonymous says:

      Unenforceable law put in place to attempt to deal with Tiara Beach.

      Lets see you try to apply it to all equally, including residential property owners and see where we get to…

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  26. Anonymous says:

    What next DART? You weren’t satisfied with taking away everything from the poor people of Cayma so now you are even wanting to take away the rights of the wealthier residents..

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