LONG-AWAITED legislation for gated communities is coming soon, and it will address challenges such as some residents’ reluctance to pay maintenance fees, according to president of the Realtors Association of Jamaica (RAJ) Gabrielle Gilpin-Hudson.

“This has been going on from at least 2018 but, from my knowledge and where I sit, the work has been done. There is a full Bill, the comments from the different agencies have been addressed, and it is now with the higher up people who need to make it happen. Us, on the ground, have done our work,” Gilpin-Hudson said during a recent RAJ session on legislative reform in real estate.

She said the legislation is called the Shared Community Bill.

According to Gilpin-Hudson, over the last five years since she has been on the RAJ board they have often pressed for movement on the issue with leaders of both major political parties.

“We have met with the prime minister almost every year, as well as the leader of the Opposition, to remind them about this, and we’re still here. That is why we decided to form a lobby and advocacy committee of the RAJ to just be a little bit more vocal on some of these issues,” she said.

In explaining the importance of the Bill she referenced current legislation that applies to strata developments.

“With the strata legislation, you don’t have to go to court. If somebody is not paying their maintenance, you go to the Commission of Strata Corporations (CSC), you report them. You can apply for a certificate of power of sale and put up their unit for sale for the unpaid maintenance. Until we have something serious like that for the gated communities, people are going to continue to not take their maintenance seriously. But guess what? It’s coming,” Gilpin-Hudson said.

Without a legal leg to stand on, established associations within gated communities have over the years tried a combination of measures to collect fees needed to cover the cost of shared amenities such as a security and lawn care. Steps have included deactivating access cards of those who are delinquent for a set number or months, forcing them to join a queue at the visitors’ entrance, and/or suffering the inconvenience of having to open the gate themselves. There have been tense exchanges at some entrances as a result.

But that is only one of the issues the legislation is expected to fix.

“It’s going to allow persons to more effectively enforce the rules that they agree to, to govern their communities. Simple things like how you divide up the maintenance payments, how you account for the money, how you elect people to your board — all of that is going to be addressed in that legislation,” explained Gilpin-Hudson.

She said the Bill, which is at an advanced stage in the drafting process, will impact a large number of communities.

“It will address every type of shared community. It doesn’t need to have a gate; once it is a subdivision that has a shared green space or a shared gate or a shared pool, once you’re sharing things in a subdivision, this legislation may capture you. Then, once you’re captured, that’s where it’s going to be regulated,” she said.

The expectation is that regulation will mitigate issues now being faced because of a lack of structure and accountability in some shared communities.

“There are a lot of persons who collect maintenance [fees] and don’t account for it, so that is also why the strata legislation, [which is similar], requires you to be doing audited accounts and annual returns so that they can know what’s going on. Millions and millions of dollars flow through some of these developments in maintenance fees, and who is managing that money and making sure that it is being managed effectively? So, that’s why you have to have a little bit of regulatory oversight, a regulator that somebody can go to and say, ‘They’re doing it wrong. Please help,’ ” Gilpin-Hudson said.

She said the RAJ will keep pressing for the Shared Community Bill to be passed into law.

From as far back as 2017 it was announced that guidelines were coming, and Real Estate Board/Commission of Strata Corporations (REB/CSC) would have oversight for these types of communities. Speaking during a JIS Think Tank, then CEO at REB/CSC Sandra Watson Garrick said the anticipated legislation would address issues such as the existing need for court action against non-compliant residents, instead of more easily applied and less costly sanctions.

The next update came at a handover ceremony for National Housing Trust’s Industry Cove Manor in Hanover on August 12, 2022 when Prime Minister Andrew Holness indicated that the Gated Communities Act would be brought to Cabinet for deliberations.

Last August, REB/CSC Senior Legal Officer Oshane Vaccianna told the Sunday Observer that the work continues on what was then being referred to as the Registration (Shared Communities) (RSC) legislation.

“A comprehensive draft of Bill has been prepared, consultations with agencies and departments of government — including the Attorney General’s Chambers — have also concluded. We anticipate preparation of the Cabinet submission in very short order,” he said in a written response then.

“The objective of the RSC legislation is to establish a framework to govern the establishment of all communities with shared properties [which are not stratas]. The RSC legislation will provide a regulatory framework to properly and effectively monitor and regulate shared communities,” Vaccianna added.

According to Gilpin-Hudson, who is also an attorney, once in effect, the legislation is not expected to disturb existing arrangements in line with the parameters it is trying to establish — one example would be townhouse developments in which homeowners have been added as shareholders and directors.

“The Bill won’t undo those things but it will kind of bolster them; essentially, those developments will fall under that and it will then be further developed. They may have to do some filings and register but, for the most part, those developments are at an advantage because they’ve already been operating as though they are governed by something because the developer and the attorney had the foresight to create a company to do this,” she assured fellow realtors during the recent RAJ session.

However, though the Shared Communities Bill is highly anticipated there are questions about how effective it will be. These come against the backdrop of infrequent use of the existing Registration Strata Titles Act, which provides redress for a wide swathe of problems.

“You can go to the Commission of Strata Corporations to fight it out,” reminded Gilpin-Hudson. “If you have an issue about somebody illegally operating an Airbnb in their place, against the rules, you can report them and they can order them to stop. They can do a lot of things — they have a lot of power under the legislation. So, stratas are great because you have built-in protection and enforcement but a lot of stratas don’t even know that and so they’re not having their AGMs [annual general meetings] to put these rules in place to hold owners accountable. [The] same thing goes for persons building things on common property — that’s not yours, that’s against the rules.”

What is needed, Gilpin-Hudson argued, is increased awareness of the rights and obligations of the “very good” Registration Strata Titles Act. The impending Shared Community Bill is anticipated to have elements that are similar to those rules.

GILPIN-HUDSON…it’s going to allow persons to more effectively enforce the rules that they agree to, to govern their communities

Established associations within gated communities have over the years tried a combination of measures to collect fees needed to cover the cost of shared amenities such as a security and lawn care