With more Jamaicans tapping into the multi-billion-dollar Airbnb market, Acting Supreme Court Puisne Judge Maxine Jackson, in disposing of a landmark case involving a College Green, St Andrew property operated as a short-term rental, says Jamaican authorities should look to regulate the industry.

Justice Jackson’s suggestion comes eight months after Tourism Minister Edmund Bartlett noted that 29 per cent of the 2.6 million stopover visitors who came to Jamaica in 2022 did so through Airbnb. As of April 2023, the market capitalisation of Airbnb worldwide was US$73.34 billion.

In a written ruling Thursday morning, following the oral judgment handed down in October this year, Justice Jackson said, “With the explosion of the Airbnb concept in this jurisdiction, this might be the time for the authorities to contemplate the feasibility of implementing measures to regulate this emergent income-generating practice.”

She made that observation while noting that, “it would appear as if the days when neighbourly engagements to resolve matters of this nature, without the involvement of the court, are way behind us”.

“Gone are the days when the courts were spared the burden of these almost domestic-type matters. The defendants’ conduct in the handling of this matter is unfortunate and unwarranted having regard to the unambiguous nature of the relevant covenants and their obvious prior knowledge,” she scolded.

In the ruling which capped an ongoing row over the operation of an Airbnb in a gated community in Hope Pastures, St Andrew, which was described as a “nuisance” by residents and was being operated in breach of the rules governing properties in that area, Justice Jackson said she had found, on a balance of probabilities, that the defendants who owned the home but had never lived there “acted in breach” of restrictive covenants and that the activities of their occupants have interfered with the claimant’s quiet enjoyment of her property.

“The evidence in relation to the numerous instances of interference with the claimant’s quiet enjoyment of her property by persons occupying the property belonging to the defendants remains unchallenged. The claimant, in her affidavit, has complained of experiencing grief and stress because of the actions of the defendants’ occupants and/or visitors and that those persons have been making life very uncomfortable and unbearable for her,” Justice Jackson outlined.

She noted further that “when considered as a whole, I find the circumstances described by the claimant of the use of the defendants’ property by their occupants or visitors and themselves to be unreasonable. I also find that based on the language of the covenants, the residential gated community was built for residential purposes only. Therefore, the defendants, by advertising in a global space which has the potential to attract thousands of persons, as it did, went beyond the intended residential purpose on which the covenants were established”.

Justice Jackson said an assessment of the security logbook with the names of more then 50 people and several motor vehicles over the period July 1, 2021, to May 6, 2022, “is also cogent evidence that the property was being used to facilitate short-term rental for vacationers”.

“This number shows the intensity of the traffic of strangers punctuated by short stays in, out and through the residential gated community and the defendants’ premises, which the claimant and others call home. This is a clear breach of the restrictive covenants,” she said.

Evidence presented during the hearing of the matter showed that the property was listed on the Airbnb website and advertised as “comfy, cozy getaway” with “free parking”. The site had several reviews from guests.

The certificates of titles for all the lots in College Green are endorsed with restrictive covenants which prohibit the houses from being used for purposes other than that which is solely residential, and also prohibit them from being used for business purposes. Further, the certificates of titles of all the owners show that the owners are entitled to enforce these covenants against each other. Owners, upon acquiring their properties, were told by the citizens’ association that there should be no Airbnb in the complex.

“For residential purposes only certainly would not allow owners, as the defendants did, to place advertisements on a popular global website to attract persons from all over the world who are seeking short-term rental accommodations and to allow those persons to use the property for that purpose exclusively. The use of their property is equated to running a hotel, which was not contemplated as a feature of a private dwelling house or the use of the premises for residential purposes,” Justice Jackson said.

The court, in the ruling further, barred the owners, or agents acting on their behalf, “from allowing their property to be used for short-term occupancy, licence or tenancy for the purpose of a trade or business” and “from permitting their said property to be used in such a manner as to amount to a nuisance”.

Additionally, the court refused to grant the offending property owners leave to appeal and, in a penal notice to the owners, warned that failure to comply with the terms of the Order constitutes contempt for which they “may be liable to be imprisoned or to have [their] assets confiscated”.

Justice Jackson, in the meantime, also commented on additional construction by the defendants on the property which, she said, “may not be in keeping with Covenant 10, which states, among other things, that ‘no building other than one dwelling house should be erected or permitted on the said land’.” Justice Jackson, however, noted that “no challenge was made in this regard”, making it so that her focus was on the substantive grievance of the complainant.

In October, following the oral judgment, attorney John Givans, who represented the citizen who sought the injunction, said the ruling might have implications for other such operations in similar settings.

“I think that you might very well find cases where the covenants are similar, because the idea behind the covenant is that the property should be used for long-term purposes. The essence of the whole thing is that businesses are being operated on the premises, the business being short-term letting. The court held that the covenant being properly construed means that the owners should not rent the property on short-term lettings. The court found that to do so amounts to business.”