ST. GEORGE WEST COUNTY PORT OF SPAIN SECOND MAGISTRATES' COURT

Transcription

1 ST. GEORGE WEST COUNTY PORT OF SPAIN SECOND MAGISTRATES' COURT RULING ON NO CASE SUBMISSION IN SUMMARY EJECTMENT PROCEEDINGS CITATION: James Allen v. Jason Beekley TITLE OF COURT: Port of Spain Second Magistrates' Court FILE NO(s): No of 2012 DELIVERED ON: Thursday 17 th April 2014 CORAM: Her Worship Magistrate Nalini Singh SUBJECT(s): Distinguishing between a lease and a licence & Termination of a tenancy at will REPRESENTATION: Mr. Maurice Ferguson for the Complainant. Mr. Lemuel Murphy for the Defendant. James Allen v. Jason Beekley 1

2 TABLE OF CONTENTS Table of Contents 2 The Introduction 4 The Evidence 5 The Submissions 6 The Issues 7 The Law 8 1. Whether there is evidence that the agreement which existed between the 8 complainant and the defendant is a lease or alternatively, whether the evidence taken at its highest shows the existence of a licence. The Test 8 Construing The Agreement "JA1" 10 Exclusive Possession 12 Certainty of Term 14 Rent or Other Consideration 14 James Allen v. Jason Beekley 2

3 Finding If there is evidence that the agreement which existed between the complainant 17 and the defendant is a lease, whether there is evidence that same was determined. The Conclusion 20 James Allen v. Jason Beekley 3

4 1.0 Introduction 1.1 The Summary Ejectment Ordinance Chapter 27 No. 17 (hereinafter referred to as "the ordinance") is an ordinance which provides for the recovery of possession of premises which has been unlawfully held over by a tenant. 1.2 On the 12 th December 2012, James Allen (the complainant) purporting to be the owner of the premises situate at #6 Gonzales Terrace Belmont (hereinafter referred to as "the said premises"), instituted proceedings pursuant to section 3 of the ordinance for recovery of the said premises. Section 3 of the ordinance states that: "When and as soon as the term or interest of the tenant of any premises held by him at will or for any term not exceeding two years, either without being liable to the payment of any rent or at a rent not exceeding the rate of two hundred and forty dollars per annum, shall have ended or shall have been determined by a legal notice to quit or otherwise, and such tenant, or (if such tenant do not actually occupy the premises or only occupy a part thereof) any person by whom the same or any part thereof shall be then actually occupied, shall neglect or refuse to quit and deliver up possession of the premises or of such part thereof respectively, it shall be lawful for the landlord of the said premises or his agent to make a complaint on oath before any Magistrate for the district in which such premises or any part thereof is situate. Such complaint may be in the form contained in the First Schedule hereto or such other form as the circumstances of the case may require". James Allen v. Jason Beekley 4

5 2.0 The Evidence 2.1 The trial into this matter commenced on the 12 th March The complainant testified and called no witnesses. He told the Court that he owned a house which was located at the said premises. He stated further that he entered into an agreement with one Andrew Ashby and pursuant to this agreement, Andrew Ashby was to be permitted to stay at the house which was located at the said premises. The complainant then said that Andrew Ashby discovered that someone was occupying the house at the said premises and when the complainant and Andrew Ashby visited the said premises, they met Jason Beekley (the defendant). 2.2 The complainant told the Court that the defendant admitted to him that he wanted to occupy the building at the said premises and the complainant said he told the defendant that he could only do so if he signed an agreement. The defendant accordingly signed the agreement. This document which was dated 27 th October 2004 was tendered into evidence and marked "JA1". The complainant testified that he never collected rent from the defendant. 2.3 In cross-examination the complainant admitted that the agreement which he entered into with the defendant began with the words "THIS LICENCE granted the 27th day of October in the Year of Our Lord, two thousand and four between James Allen of 1 Nelson Street, Port of Spain in the Republic of Trinidad and Tobago (hereinafter referred to as the "the Grantor" of the one part) and Jason Beekley of 6 Gonzales Terrace, Gonzales, Port of Spain in the said Republic of Trinidad and Tobago (hereinafter referred to as "the licensee") of the other part". James Allen v. Jason Beekley 5

6 2.4 The complainant also agreed that the said agreement ended with a term which read as follows: "Nothing herein contained shall create the relationship of landlord and tenant between the parties hereto and the intention is that no such relationship shall be created by such occupation as aforesaid". 2.5 The complainant reiterated that he owned the said premises and the defendant was the person he allowed to stay there. Additionally the complainant confirmed that the defendant was the one who signed the agreement in his presence. He denied that he knew the defendant to be living at the said premises since He also told the court that he wanted possession of the said premises so that he could build on it. 3.0 The Submissions 3.1 After the complainant closed his case, counsel for the defendant Mr. Lemuel Murphy made a submission that his client did not have a case to answer. The basis of his submission is that the ordinance facilitates the recovery of possession of premises which have been unlawfully held over by persons with tenancy agreements which have been determined. Counsel submits that the complainant never adduced evidence that his client was a tenant with a lease. Indeed Mr. Murphy submits that his client possessed a licence at the material time. Alternatively Mr. Murphy states that if the complainant's case is to be taken at its highest, the defendant may be considered a tenant at will since he never paid rent but counsel argues that this is inconsistent with the wording of "JA1". Further the last clause of "JA1" (set out above) defeats any argument of form over substance. James Allen v. Jason Beekley 6

7 3.2 Mr. Murphy also argues that there was no evidence that the alleged tenancy -if there was one, was determined by a notice to quit, efluxion of time, surrender or even forfeiture. 3.3 Counsel argues that since evidence of these critical preconditions was never adduced, the procedure under section 3 of the ordinance cannot be invoked against his client and the matter should accordingly be dismissed. 3.4 Mr. Maurice Ferguson for the claimant maintained that he adduced proof of the fact that the defendant was a tenant who resided on the said premises and for this reason the no case submission should be overruled. 3.5 Neither counsel relied on any authorities to support of their respective submissions and so, the Court was consequentially deprived of any guidance from counsel on these areas of law. 4.0 The Issues 4.1 Against this backdrop two short points have arisen to be determined. They are: 1. Whether there is evidence that the agreement which existed between the complainant and the defendant is a lease or alternatively, whether the evidence taken at its highest shows the existence of a licence. 2. If there is evidence that the agreement which existed between the complainant and the defendant is a lease, whether there is evidence that same was determined. 4.2 I turn now to address each of these issues. James Allen v. Jason Beekley 7

8 5.0 The Law 1. Whether there is evidence that the agreement which existed between the complainant and the defendant is a lease or alternatively, whether the evidence taken at its highest shows the existence of a licence. The Test 5.1 The established test for determining whether a contract is a lease or licence is the "intention of the parties" test as set out in the Privy Council case of Isaac v. Hotel de Paris [1960] 1 All ER 348. On the facts of this case, an employee who managed a night bar in a hotel for his employer company which held a lease of the hotel, negotiated 'subject to contract' to complete the purchase of shares in the employer company and, to be allowed to run the nightclub for his own benefit -if he paid the head rent payable by the company for the hotel. In the expectation that the negotiations 'subject to contract' would eventually crystallize into a binding agreement, the employee was allowed to run the nightclub and he paid the company's rent. When negotiations broke down the employee claimed unsuccessfully to be a tenant of the hotel company. It was found that the circumstances in which the employee was allowed to occupy the premises showed that the hotel company never intended to accept him as a tenant and that he was fully aware of that fact. This was a case in which, according to Lord Denning in handing down the decision of the Privy Council, the parties did not intend to enter into contractual relationships unless and until the negotiations 'subject to contract' were replaced by a binding contract. This is how the matter was put at page 351: "It was submitted by counsel for the appellant that there were all the indicia of a monthly tenancy. There was not only exclusive possession but there was also the payment and acceptance of rent. (Furthermore, the appellant paid the James Allen v. Jason Beekley 8

9 disbursements, and so forth.) Counsel admitted that these would not be decisive to establish the tenancy in the case of premises within the Rent Restriction Acts such as Marcroft Wagons Ltd v Smith and Murray, Bull & Co Ltd v Murray, but it was altogether different, he said, in the present case where the premises were not subject to rent restriction legislation. The only proper inference here was a monthly tenancy. Their Lordships cannot accept this view. There are many cases in the books where exclusive possession has been given of premises outside the Rent Restriction Acts and yet there has been held to be no tenancy. Instances are Errington v Errington & Woods and Cobb v Lane, which were referred to during the argument. It is true that in those two cases there was no payment or acceptance of rent, but even payment and acceptance of rent though of great weight is not decisive of a tenancy where it can be otherwise explained: see Clarke v Grant. As Lord Greene MR said in Booker v Palmer ([1942] 2 All ER 674 at p 677): There is one golden rule which is of very general application, namely, that the law does not impute intention to enter into legal relationships where the circumstances and the conduct of the parties negative any intention of the kind. It appears to their Lordships that the law on this matter was correctly interpreted and applied by Archer J in the Federal Supreme Court when he said: It is clear from the authorities that the intention of the parties is the paramount consideration and while the fact of exclusive possession together with the payment of rent is of the first James Allen v. Jason Beekley 9

10 importance, the circumstances in which exclusive possession has been given and the character in which money paid as rent has been received are also matters to be considered. The circumstances in which [the appellant] was allowed to occupy the Parisian Hotel show that Joseph never intended to accept him as a tenant and that he was fully aware of it. The payments he made were only part of the disbursements for which he made himself responsible and the so-called rent was in the nature of a reimbursement of the rent payable by the [respondent company]. Their Lordships are, therefore, of opinion that the relationship between the parties after 17 February 1956, was not that of landlord and tenant, but that of licensor and licensee. The circumstances and conduct of the parties show that all that was intended was that the appellant should have a personal privilege of running a night bar on the premises, with no interest in the land at all" (emphasis mine). 5.2 This case therefore makes it clear that in discerning whether a document is a lease, one must look behind the words used by parties to ascertain their real intention. In so doing, this case has essentially made the "exclusive possession" test a negative one only. Construing The Agreement "JA1" 5.3 So having directed my mind to the test to be applied by the Court when it is necessary to identify whether a contract is a lease agreement, I move now to examine the contents of the agreement which was tendered into evidence in this matter and marked "JA1" to ascertain what James Allen v. Jason Beekley 10

11 was the true intention of the complainant and the defendant in this matter. And of course the first thing which is immediately apparent is that there are certain clauses in "JA1" which purport to determine its legal effect. Clause 7 of the agreement for instance expressly states that nothing in the agreement shall create the relationship of landlord and tenant between the parties and, the intention is that no such relationship shall be created by occupation. 5.4 It is clear however that the terminology used by the parties in "JA1" cannot be decisive. Although the terminology used by the parties can be taken into account by the Court in determining its legal effect, I remind myself of the dicta of Lord Templeman in Street v. Mountford [1985] AC 809 at page 819 that: "the consequences in law of the agreement once concluded, can only be determined by consideration of the effect of the agreement. If the agreement satisfies all the requirements of a tenancy then the agreement produced a tenancy and the parties cannot alter the effect of the agreement by insisting that they only created a licence". 5.5 Similar sentiments can be found at paragraph 1022 of 23 Halsbury's Laws (3rd Ed) page 427 where it is said that: "The parties to an agreement cannot however turn a lease into a licence merely by stating that the document is to be deemed a licence or describing it as such; the relationship of the parties is determined by law on a consideration of all relevant provisions of the agreement, nor will the employment of words appropriate to a James Allen v. Jason Beekley 11

12 lease prevent the agreement from conferring a licence only if from the whole document it appears that it was intended merely to confer a licence, " 5.6 That settled, the agreement on its face, contemplates a user of the said premises by the defendant from the 27 th October 2004 to be determined by one month's notice from the complainant. So the initial question which this Court must determine is the status of the defendant as occupier during this period. 5.7 Generally speaking, for a tenancy to arise, the occupier must be granted exclusive possession for a term at a rent. I will now examine the evidence which was led in respect of each of these three factors. Exclusive Possession 5.8 Exclusive possession connotes the fact that a tenant has the right to exclude all persons from the premises let including the landlord himself. According to JCW Wylie in The Land Laws of Trinidad & Tobago (Government of Trinidad & Tobago: Port of Spain, 1986) at paragraph it is a fundamental principle of common law that a tenant has a right to exclusive possession of the premises let for the duration of the tenancy. Indeed there have been cases which have held that exclusive possession is of "first importance" in considering whether an occupier is a tenant, and usually is indicative albeit not determinative of a tenancy. One such case is the Trinidad and Tobago Court of Appeal case of Coombes v. Sampson (1964) 7 WIR 463. This was a case where the learned magistrate found that the appellant was a rent-free tenant and made an ejectment order against him. He appealed this order. One of his grounds was that James Allen v. Jason Beekley 12

13 the true relationship between the respondent and himself was that of licensor and licensee and not of landlord and tenant. In dealing with this ground of appeal, His Lordship Chief Justice Wooding made the point at page 464 that: "In our judgment, the authorities establish that where a person is let into exclusive possession of premises, prima facie he becomes a tenant unless the circumstances manifest a different intention. The law on the subject was fully reviewed by LEWIS J, when the Federal Supreme Court had before it the appeal of Sylvestre v Cyrus ((1959), 1 WIR 407) ((1959), 1 WIR 407) and, as we entirely agree with his analysis and conclusions, we think it fruitless to review it again. We think, too, that there is often a distinction to be made between a new occupant who had been put into exclusive possession by the owner and a continuing occupant who has been allowed for some reason to remain in exclusive possession. That is the very foundation of the difference between the case of Isaac v Hotel de Paris Ltd ((1959), 2 WIR 105, (1960), 1 All ER 348, [1960], 1 WLR 239, 104 Sol Jo 230, 24 Conv 246, 25 Conv 497) ((1959), 2 WIR 105; (1960), 1 All ER 348), on the one hand and Cyrus' case and the one now before us on the other. Where exclusive possession is given to a new occupant, it is almost decisive of the creation of a tenancy so that special circumstances or conduct must be shown in order to negative a tenancy in favour of a licence (emphasis mine)". That said, it remains to be seen whether there is evidence that the defendant in this case was given exclusive possession of the said premises. James Allen v. Jason Beekley 13

14 5.9 On the face of "JA1" I find that there is evidence that the defendant was granted exclusive possession of the said premises. I infer this from clause 2d which states that the defendant had the power to "allow" the complainant, his servants and/or agents, workmen, contractors or any persons authorized by him, to inspect the said premises and effect repairs. Certainty of Term 5.10 A lease must have a certain beginning and a certain ending. I am satisfied that there is no uncertainty as to the date of the commencement of the defendant's interest as per the agreement. Indeed the agreement commences by stating that it is "granted this 27th day of October in the Year of Our Lord, two thousand and four". Further, clause 4 provides that the agreement can be "determined by one month's notice" being given by the complainant. I am satisfied therefore that a tenancy on the part of the defendant was not precluded by uncertainty of term. Rent or Other Consideration 5.11 Lord Justice Fox made the point in AG Securities v. Vaughan [1991] A.C, 417 at page 430 that "(w)hile, at least, a tenancy is granted usually in return for a periodic payment in money, this is not inevitably the case". And so it has been held that a tenancy at will arises where an individual is allowed to occupy a house rent free for an indefinite period. In the words of Justice Deane in the Court of Appeal case from Trinidad of Ada Braithwaite v. Mackmool 5 Trin LR 20 at page 21 "... a tenancy at will, I take it, is a tenancy which arises out of some sort of contract between the parties; it is a tenancy which depends on the will, not of one party, but of both". His Lordship then went on to cite with approval the dictum of Watson B from Ley v. Peter 3 H. and N. 101 where the principle was further clarified in this way: James Allen v. Jason Beekley 14

15 "A tenancy at will like any other tenancy must be created by the agreement of the parties, or it may arise from the relation of the parties, where there is a will on both sides, that one should hold the land of another... And also when one person occupies the land of another by his express permission, without payment of rent, he is a strict tenant at will" According to the complainant in cross examination, he granted the defendant permission to occupy the said premises without paying rent. As such I am of the view that there is evidence of the creation of a tenancy at will Taking all of the aforementioned matters into account I conclude that the agreement and the evidence led, bear all the indications of, and satisfy all the requirements of a tenancy This view is buttressed by other terms in "JA1". They are: The defendant undertook a number of obligations to the complainant which have been set out at clause 2. I consider these obligations are obligations which commonly appear in tenancy agreements although I remind myself that this does not of itself mean that this is a tenancy agreement. A few of the obligations for instance the obligation at clause 5 to "indemnify the Grantor from all claims, actions and liability whatsoever and howsoever arising out of the use and occupation of the said premises by the licensee, his guest or any other person whatsoever", the obligation at clause 6 to undertake and agree that "no action, James Allen v. Jason Beekley 15

16 claim or request will be made by the licensee, his guest, visitors or any other person whatsoever against the Grantor arising out of any incident, loss or injury sustained by the licensee or any other person during the period of this licence" and, the obligation at clause 2d to "allow the Grantor, his servants and/or agents or workmen contractor or any persons authorized by him to inspect the said premises and its curtilage and to effect any repairs to the said premises whenever same becomes necessary" emphasize the exclusivity of possession granted to the defendant. The obligation at clause 2c to "clean the premises and curtilage and ensure the curtilage is kept in a sanitary condition at all times" suggests that something more than a mere licence to use the said premises was granted to the defendant. The obligation at clause 2e not to "effect repairs and/or renovations to the said premises or to erect any structures of any kind and nature on the said premises and curtilage without the consent in writing of the grantor being first obtained" implies that it was within the contemplation of the parties that the defendant might wish to effect structural alterations to the said premises and shouldn't do so without first obtaining consent and this is suggestive of something more than a privilege to use the said premises. It is also worth stating that if the complainant had provided in "JA1" that he would be responsible for all costs incurred this may have suggested a licence but clause 2a specifically provides that the cost of the electricity which is consumed on the said premises is to be paid by the defendant. Further at clause 2b the defendant agreed to James Allen v. Jason Beekley 16

17 reimburse the complainant for all monies paid by him to the Water and Sewerage Authority and House Rates and Taxes with respect to the said premises. Finding 5.15 As such, I find that there is sufficient evidence of the existence of a tenancy rather than a licence. I find further that this evidence, if believed, is capable of satisfying a tribunal of fact to the requisite standard of proof, of the creation of a landlord and tenant relationship between the complainant and the defendant. 2. If there is evidence that the agreement which existed between the complainant and the defendant is a lease, whether there is evidence that same was determined In view of my findings above, the second matter which arises for determination is whether there is evidence that the tenancy was determined to therefore invoke the Court's jurisdiction under section 3 of the ordinance. Mr. Murphy's argument is that on the facts proved, the complainant never terminated the agreement The clause in the agreement which governs termination is clause 4 which states simply that there can be termination with one month's notice. It would therefore seem that clause 4 is to be interpreted in the widest sense possible. It follows that it was open to the complainant to effect notice of termination through any means necessary -so long as the desire that the tenant at will should no longer occupy the premises, is communicated to the tenant. James Allen v. Jason Beekley 17

18 5.18 The learning on termination of tenancies at will is equally facilitative so in Halsbury's Laws Volume 271 at paragraph 172 the paragraph begins with this statement: A tenancy at will is determinable by either party on his expressly or impliedly intimating to the other his wish that the tenancy should be at an end. In my judgment, this means that formal notice need not be given by either party as long as an act is done which clearly intimates to the other party that the tenancy is to come to an end. The paragraph further states that: "Acts done by a landlord on or off the premises which are inconsistent with the continuation of the tenancy at will may impliedly terminate the tenancy. In the case of acts done openly on the premises, the tenant is presumed to have notice. In the case of acts done off the premises, the tenancy is not determined until the tenant has notice of them" Turning to the circumstances of the instant matter it is arguable that service of the ejectment complaint on the defendant terminated the tenancy at will. This argument was never raised by Mr. Fergusson but this Courts has noted that this approach is borne out by the case of Locke v. Matthews 13 C&B (N.S) 754. On the facts of this case, in 1830, A enclosed about six acres of land and built a cottage on it. He was allowed to remain on those premises without the need to pay rent down to the year 1845 when A was served with a notice of ejectment. This case specifically held that the service of the notice in 1845 operated as a determination of the tenancy at will. Similarly, in Doe Dem. Nicholl And Others v. M'Kaeg 10 B&C 722 an argument was raised that a demand for possession was not sufficient to determine the tenancy at will. It was held by Chief Justice Tenterden that the tenancy at will was determined by the demand for James Allen v. Jason Beekley 18

19 possession via ejectment proceedings. Lord Park arrived at a similar conclusion in Doe Dem Benjamin Jones v. Michael Jones & Others 10 B&C 717. In fact Lord Justice Denning in Martinali v. Ramuz [1953] 1 WLR 1196 at page 1199 boldly asserted that "(i)t is elementary that a tenancy at will is determined by a demand for possession, not by a notice to quit". His Lordship went on to conclude in that case that on the facts of the matter before him the tenancy at will was determined by the issue of a writ claiming possession -which according to His Lordship "was itself a demand for possession" Now since there was service of the ejectment complaint on the defendant well over a month before the commencement of proceedings the termination clause in "JA1" is not ignored. I find therefore that there is evidence of termination by the complainant Indeed it must be remembered that the defendant and the complainant are presumed to have understood the meaning of the words, and their full force and effect when they subscribed to the agreement, and consequently since there was no specific format set out in the agreement for termination there was no necessity to abide by any pre set format for termination save that a period of one month's notice be given The principles governing submissions of no case to answer in the magistrates' courts is set out in Riley v. Barran (1965) 8 WIR 164 where Justice of Appeal Phillips approved the Practice Note [1962] 1 All ER 448 by Lord Parker CJ, of England to the effect that: "A submission that there is no case to answer may properly be made and upheld: (a) when there has been no evidence to prove an essential element in the alleged James Allen v. Jason Beekley 19

20 offence; (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict". There is no need to delve further into the law on submissions of no case to answer only to apply it. Mr Murphy relies on the first limb to sustain his no case submission I find therefore that the complainant has adduced evidence which if believed is capable of satisfying a tribunal of fact to the requisite standard of proof of the following: 1. There was a lease which was negotiated between the complainant and the defendant. 2. The defendant was given notice by the complainant of the termination of same. 6.0 The Conclusion 6.1 I hold the view that the evidence before me is sufficient to call upon the defendant to answer the complaint and the submission of no case to answer is accordingly dismissed. 6.2 Finally, I thank counsel for their assistance. Her Worship Magistrate Nalini Singh Port of Spain Second Magistrates' Court James Allen v. Jason Beekley 20