In 2019 Apes Hill Development, SRL, the developer of Apes Hill since 2006 (the “Developer”) defaulted on its obligations to its lenders (the “Mortgagee”) and ceased operations. In early 2020 the Mortgagee sold the properties of the Developer at Apes Hill to Plantation Sanctuary Inc. (“PSI”) to satisfy the obligations of the Developer to the Mortgagee. We understand that the properties sold consisted of 35 approved lots, the Common Property to be improved and conveyed by the Developer to the Apes Hill Club Homeowners Association, Inc (the “HOA”) and the Golf Course.
PSI then appointed the Directors of the HOA who, among other things, took control of the HOA on behalf of PSI. To the best of our knowledge, the current Board of Directors of the HOA:
(a) does not hold annual membership meetings of the HOA where the business of the HOA can be conducted including the election of Directors.
(b) is not supported by the membership of the HOA which in large part refuses to pay dues to the HOA or does so only under protest.
(c) makes no effort to communicate with the membership of the HOA; does not maintain a current and accurate mailing list of all lot and villa owners at Apes Hill; and does answer questions from the membership.
(d) does not disclose their business relationships with PSI.
(e) is not composed of members of the HOA.
(f) does not charge HOA dues to PSI.
(g) is free to impose restrictions on the transfer and development of lots at Apes Hill that can only be met by PSI.
(h) is free to support the further subdivision of Apes Hill by PSI without regard to the loss of Common Property still to be transferred to the HOA, to the environmental concerns of members of the HOA or to the social and economic impacts of expanded development to the Apes Hill Community.
(i) is free to approve budgets for the HOA without supporting financial documentation, to issue financial statements with no approving opinion from the auditor, to forgive obligations owed to the HOA without accountability, and to charge members of the HOA dues in such amounts as are approved by PSI but not by the rest of the members of the HOA.
(j) is currently attempting to force all members of the HOA to be members of the Apes Hill Club, a golf club still to be formed by PSI, with an initiation fee of US$125,000, an annual membership fees of at least US$20,000, whether a member of the HOA wants to be a member of the Club or not, and force the members to bear the losses of the club.
(k) is acting in violation of its fiduciary duties to all members of the HOA.
In response to such apparent illegalities and conflicts of interest, a group of lot and villa owners who are members of the HOA (the “Owners Group”) banded together in early 2021 to protect their rights as members of the HOA by retaining Leslie Haynes, Q.C., Dawn Williams at Meridian Law and Shane Kingston at Harridyal Sodha & Associates (collectively “Counsel”) to review the activities of the HOA since PSI assumed control of it and to provide legal advice to the Owners Group.
Counsel has now opined on several issues including the following:
(1) PSI has no authority to appoint any Directors of the HOA.
(2) Any Director of the HOA who is appointed by PSI, acts with fiduciary duties to all members of the HOA, not just PSI.
(3) The provisions of the 2021 Rules of the HOA, enacted by the current Board of Directors of the HOA, that purport to require all members of the HOA to also be members of the Apes Hill Club, an entity apparently to be formed by PSI, are illegal and unenforceable against current members of the HOA.
(4) The HOA must hold Annual Meetings at which the business of the HOA can be conducted by its membership, including the election of Directors.
Since representatives of PSI and the HOA have refused to date to: (1) meet with the Owners Group to resolve open issues, (2) answer any questions that have been posed by the Owners Group, (3) communicate with all members of the HOA, or (4) hold Annual Meetings at which the business of the HOA can be conducted by the membership of the HOA, including the election of a Board of Board of Directors, the Owners Group came to realize that the only way the legal rights of members of the HOA who are not PSI, can exist and be protected, is if those rights are enforced by a legal entity, that is well-informed and well-funded and represents the interests of approximately 120 members of the HOA who are not PSI.
Accordingly, the Owners Group caused the Apes Hill Benevolent Society, Inc. (the “Society”) to be incorporated on 7 December 2021, as a non-profit corporation in Barbados. The initial Board of Directors of the Society has now held its organization meeting to approve among other things, the By laws. The Board is now in the process of developing a Membership Plan for the Society. Once the Membership Plan has been vetted by counsel and approved by the Board of the Directors of the Society, a Membership Application and related documents will be added to this website and sent to all members of the HOA for whom we have email addresses that are not PSI.
After the membership of the Society has been finally determined, the Initial Board of Directors will hold the First Annual Meeting of the Membership of the Society to elect its Officers and Directors and to approve such actions, including the commencement of litigation, as may properly come before and be approved at the First Annual Meeting.