PROPERTY developers could soon face greater responsibilities for the management and upkeep of residential and commercial projects, under proposed legislation that would require them to put maintenance budgets, governance arrangements, and other provisions for shared facilities in place before selling individual lots.

Attorney-at-law Alton Morgan pointed out that the Shared Communities Bill, which is in its final redrafting stage would introduce a statutory framework governing developments with common facilities, whether gated or not.

Morgan, managing partner of LEGIS Attorneys, outlined the proposed changes during the Jamaica Developers Association (JDA) webinar on Thursday, warning that developers would have to take a more comprehensive approach to planning projects, including making arrangements for the long-term maintenance of common areas.

“It’s going to be a much more thorough and comprehensive development planning process than what now exists,” Morgan told participants.

Under the proposed framework, developers undertaking subdivisions with shared spaces would be required to register their projects with the Real Estate Board and the Registrar of Titles. Registration would be mandatory for qualifying new developments, with the process to be completed before individual subdivision titles are issued.

The requirements would extend beyond traditional gated communities to open residential subdivisions and commercial developments where tenants or property owners share facilities such as access roads, parking areas, recreational spaces and other infrastructure.

“It’s irrelevant whether the development is residential or commercial. The question is: Do you have shared community space? And if so, then registration is required,” Morgan explained.

He noted that even developers who retain ownership of an entire commercial property and lease individual units would fall within the proposed requirements where shared facilities exist.

The legislation is intended to address long-standing problems in communities where developers complete projects and leave residents to establish voluntary associations to manage shared facilities, often without adequate legal arrangements for collecting maintenance contributions or enforcing obligations.

Morgan said the legislation would also seek to ensure that property owners, regardless of whether they occupy their units, contribute to the management and upkeep of communal infrastructure.

“It is aimed at requiring all owners of land in a community having shared spaces to act responsibly rather than indifferently. And it will impose obligations on whatever type of ownership you may have to cooperate in maintaining the infrastructure of the community,” he said.

More planning, more responsibility

Among the proposed requirements, developers would have to submit detailed information on how their communities will operate, including draft budgets for maintenance expenses, proposed bylaws, arrangements for waste management, and the services to be provided to property owners.

These could include security, landscaping, pool maintenance and garbage collection, with developers expected to determine how the associated costs would be shared.

Unlike strata developments, which operate under prescribed bylaws, developers of shared communities would have to prepare rules tailored to the particular design and needs of their projects.

“A draft budget for the community expenses will have to be prepared by the developer, so they’ll have to contemplate all of what will be required to maintain the standards of the shared spaces in the community,” Morgan said.

The additional requirements could increase the amount of planning and professional input needed before projects reach the market, although no estimates were provided during the webinar of the potential financial impact on developers.

Morgan said architects, commissioned land surveyors, attorneys, planners and property managers would need to become involved much earlier in the development process to ensure that projects satisfy the proposed requirements.

“You’re going to have to get them all to come around the table, sit down, discuss and give their advice on how your development is to be laid out and managed under this statute,” he said.

The legislation would also require developers to anticipate practical management issues that are frequently overlooked during construction. These include providing secure storage areas for maintenance equipment, appropriate facilities for garbage collection, meeting areas for community associations, and separate water and electricity arrangements for communal spaces.

One issue Morgan singled out was the failure of some developers to implement rainwater-harvesting provisions included in subdivision approvals.

“In almost all the approvals that I’ve seen for subdivisions in the last 10 years or so, there is a requirement for rainwater harvesting,” he said.

“Most developers ignore it and it’s just not implemented. But you’re going to have to implement it because when you present a subdivision approval to the Real Estate Board, along with your registration plan, they’re going to say, ‘Well, show us where your rainwater harvesting is.’ “

He argued that harvesting rainwater would reduce the need to use treated water for landscaping and other activities, particularly during periods of drought.

No more walking away

Another significant change concerns ownership of common areas, which Morgan said are frequently left on the original property title even after individual lots have been sold.

Under the proposed legislation, land designated for shared use would have to be transferred to the community association, rather than remaining in the developer’s name indefinitely.

This would require closer coordination among developers, attorneys, surveyors and mortgage lenders to ensure that the relevant lands are properly identified and transferred.

The legislation would also provide a more formal framework for collecting maintenance contributions, including provisions aimed at dealing with property owners who fail to pay their share.

Morgan said relying on voluntary contributions had created persistent difficulties for community associations.

“Funding for upkeep is always difficult if it is left to be voluntary,” he said, explaining that developers would need to establish a levy system or another enforceable method of collecting contributions.

The proposed arrangements would also require developers to establish communication systems for residents and property owners, allowing community associations to maintain contact with members, including those living overseas.

During the subsequent panel discussion, Norman Minott, consultant at Myers, Fletcher & Gordon; Venice Williams, attorney-at-law and partner at Lewis, Smith, Williams & Co; and John Leiba, attorney-at-law and consultant at DunnCox, welcomed the proposed changes, noting that the absence of dedicated legislation for non-strata shared communities had forced developers and attorneys to rely on contractual arrangements that sometimes became difficult to enforce when properties changed ownership.

Minott cautioned that developers should not regard their responsibilities as ending once construction is completed and the properties are sold, arguing that the arrangements put in place to manage communities could affect both the success of a development and the developer’s reputation.

“Don’t just complete the development and drop it on the purchasers and say, ‘Well, I’m gone…I put my money in the bank,’ and that’s it. I don’t think that that’s a responsible way of going about development,” he said.

Questions were also raised about the Real Estate Board’s ability to take on the additional regulatory responsibilities, particularly given concerns about the resources required to supervise existing strata developments.

The proposed legislation is expected to fall under the Real Estate Board, which Morgan said is slated to be reconstituted as the Real Estate Authority.

While the legislation would establish mandatory registration requirements for new qualifying developments, existing communities are expected to be treated differently, with provisions for registration or possible exemptions where satisfactory management arrangements are already in place.

Morgan said there is no certainty about when the Bill will come into effect, although it is in its final redrafting phase.

MORGAN…it’s irrelevant whether the development is residential or commercial. The question is: Do you have shared community space? And if so, then registration is required