TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. Cv. 2010-03934 BETWEEN RANDY CHARLES CLAIMANT AND MARION PHILLIPS DEFENDANT BEFORE THE HONOURABLE MADAME JUSTICE DEAN-ARMORER APPEARANCES Ms. Rekha Ramjit, Attorney-at-Law for the Claimant. Mr. Martin George, Attorney-at-Law for the Defendant. REASONS Introduction 1. The claimant is the owner of subject premises which are situated at Tranquility Gardens, Orange Hill, Tobago. He instituted these proceedings against the defendant in order to recover vacant possession and arrears of rent. 2. On 26 th October, 2012, I delivered an oral ruling in favour of the claimant. My reasons for so doing are set out below. Page 1 of 8
Procedural History 3. On the 30 th of September, 2010 the claimant filed a Fixed Date Claim Form seeking the following orders: 1. A Declaration that the Claimant is entitled to possession of ALL AND SINGULAR that certain property, situated and known as Tranquility Gradens, [sic] Orange Hill. Tobago 2. An order that the Defendant do deliver vacant possession of the subject property to the claimant 3. An Order that the Defendant do pay the claimant all arrears of rent in the sum of $105,000.00 4. An Order that the Defendant any [sic]charges for use and occupation from the date of the order until the claimant recovers possession of the subject property 5. Interest 4. On the 31st of January, 2011 the claimant applied to this court for judgment against the defendant in default of defence. On the 25th of February 2011, the defendant filed an application for an extension of time to file her defence. 5. On the 7th of June, 2011, the court dismissed the defendant s application for an extension of time for the filing of her defence and granted permission to the claimant to file witness statements in support of the claim. 6. Pursuant to the Court s direction, one witness statement was filed on behalf of the claimant on 30 th June, 2011. This was the witness statement of the claimant himself. Page 2 of 8
Because there was no opposing statement, the claimant s witness statement formed the basis of the Court s findings of fact in this claim. Facts 7. The claimant is the owner of the subject premises situated at Tranquility Gardens, Tobago. He became owner by virtue of a Deed of Conveyance dated the 4 th June, 2007 and registered as Deed No. DE 200702396837. 8. The claimant occupied the subject premises until May, 2009, when he entered into discussions with the defendant, Ms. Marion Phillips with a view to renting the subject premises. 9. The claimant and the defendant agreed, by way of their verbal discussions that the claimant would rent the premises to the defendant for a period of two years, from May, 2009 to April, 2011. 10. They agreed further that the defendant would pay a security deposit in the sum of $12,000.00 and rent at a rate of $9,000.00 per month from 1 st May, 2009 to 1 st December, 2009 and at the rate of $12,000.00 from January, 2010 to April, 2011. 11. By their verbal agreement, the defendant would be responsible for maintaining the building and its surroundings and for paying utility bills except WASA bills. 12. The terms of the verbal agreement were not reduced to writing. The claimant alleged that he had executed a deed of lease and that the defendant failed to attend the offices of the attorney-at-law for the purpose of executing the lease on her own behalf. 13. The defendant entered into possession in May, 2009 and began operating her business of a home for the aged. She duly paid the security deposit as well as the monthly rental Page 3 of 8
payments for the months of May, June, July, August and September, 2009. Thereafter the defendant ceased payments of rent. 14. In April, 2010, the defendant made two payments in the sums of $20,000.000 and $10,000.00 respectively. At the end of April, 2010, her indebtedness stood at $45,000.00. 15. On 17 th August, 2010, the claimant served a Notice to Quit on the defendant at the subject premises. The Notice to Quit was dated the 13 th August, 2010, and was given by the claimant to Vashti Toolsie, an employee of the defendant. 16. The defendant continued nonetheless to occupy the subject premises, and at the date of the hearing of this claim, the defendant had not delivered vacant possession to the claimant. Submissions and Law 17. Parties relied on the written submissions of their learned Attorneys-at-law. The claimant s submission was filed on 21 st July, 2011 and the defendant s written submission was filed on 31 st July, 2012. 18. By her submission, Ms. Bernard, learned Attorney-at-law for the defendant accepted that there was a lease in existence but argued that the lease was for a period of three years less two days and was due to expire on 30 th April, 2012. There was no evidential basis for this submission. 19. Learned Attorney-at-law contended further that the defendant undertook repairs. In this regard, the learned Attorney-at-law cited and relied on the authority of Lee Parke v. Izzet [1971] WLR 1688 in support of her submission that the defendant, had a right to deduct her expenditure on repairs from the rent due to the claimant as landlord. Page 4 of 8
20. Learned Attorney-at-law relied as well on the Letting of House (Implied Term) Act 1 which provides at S. 3 (1). In any contract for letting any house for human habitation there shall, not withstanding any stipulation to the contrary, be implied a condition that the house is at the commencement of the tenancy, and an undertaking that the house will be kept by the landlord during the tenancy in repair and in all respects reasonably fit for human habitation 21. Ms. Bernard for the defendant submitted further that where the landlord has covenanted to repair and having been notified by the tenant of the need to effect repairs, the landlord fails to carry them out, the tenant is entitled to arrange to have repairs done and to deduct this cost from future payments of rent. 22. On behalf of the claimant, Learned Attorney-at-law omitted once again to identify the evidential foundation of her submission. In particular, there was no evidence of a covenant to repair. There was also no evidence that the defendant had made a request of the claimant that the premises be repaired or that the defendant had expended any resources towards effecting repairs. 23. Learned Attorney-at-law, Ms. Ramjit relied on the authority of Street v. Mountford [1985] 2 All ER 289 in support of her submission that there are three attributes of a tenancy: (i) (ii) (iii) the right to exclusive possession in the tenant certainty in the duration of the lease payment of rent. 1 Letting of House (Implied Term) Act Ch. 27, No. 3 (Revised Ordinances 1950) Page 5 of 8
Learned Attorney-at-law treated with each of these attributes in support of her submission that the defendant was indeed the tenant of the claimant. 24. Learned Attorney-at-law submitted further that a tenancy for a fixed term could be terminated for breach of a covenant to pay rent. In support of this submission, learned Counsel quoted from the judgment of Deyalsingh J. in Seetahal v. Batchasingh 2. It was Ms. Ramjit s submission that the defendant having remained in occupation after the operation of the Notice to Quit, held over as a tenant at sufferance. Reasoning and Decision 25. The issues which arose for my consideration were: whether the claimant was entitled to vacant possession and whether the claimant was entitled to recover arrears of rent. 26. The only evidence before the Court was the evidence embodied in the witness statement of the claimant. There was no evidence to contradict the evidence of the claimant. Accordingly, I accepted the claimant s evidence in its entirety, and made the following findings of fact: there was a verbal agreement between the parties, whereby the claimant agreed to allow the defendant to have exclusive possession of the subject premises for a period of two years at an agreed rent, the defendant defaulted on payments of rent and thereby breached her covenant to pay rent. 2 Seetahal v. Batchasingh HCA#89 of 1983 Page 6 of 8
the claimant delivered a Notice to Quit to the subject premises on 17 th August, 2010. Pursuant to the Notice to Quit, the defendant ought to have delivered vacant possession by 12 th September, 2010. at the date of the decision, however, there was no indication that the defendant had complied with the Notice to Quit. 27. The defendant continued in possession of the subject premises for at least two years after the termination of the tenancy. In this way, the defendant occupied the premises between September, 2010 and October, 2012 as a tenant at sufferance 3. 28. It was my view that by operation of the Notice to Quit, the claimant brought the tenancy to an end with effect from the 12 th September, 2010. It was my view that the claimant was entitled to an order for vacant possession as well as an order for the payment of the arrears of rent as claimed. 29. In my view, the claimant successfully established on the evidence that the defendant, in the capacity of a tenant, defaulted on payments of rent from October, 2009 to September, 2010. The defendant, as a tenant at sufferance, also failed to pay rent. However, in April, 2010, the defendant made two lump sum payments. The payments were in the sum of $20,000.00 and $10,000.00 respectively. Another payment of $20,000.00 had been made in November, 2010. 30. According to the uncontroverted evidence of the claimant, the defendant ceased payments of monthly rent from October, 2009 to the present time. In respect of the period September, 2009 to December, 2009, the sum outstanding was calculated as follows: rent at the rate of $9,000.00 x 3 months = $27,000.00 3 See the definition of tenant at sufferance in Seetahal v. Batchasingh HCA#89 of 1983 Page 7 of 8
31. In respect of the period January, 2010 to present, the sum due to the claimant was calculated as follows: monthly rent of $12,000.00 x 34 months (to the date of judgment) = $12,000.00 x 34 = $408,000.00 From this it is necessary to deduct the lump sum payments amounting to $30,000.00. 32. I accepted that at the date of filing of the claimant s witness statement, the defendant s indebtedness was probably in excess of $205,000.00 as stated at paragraph 9 of the claimant s witness statement. 33. The claimant failed however to seek an amendment of the claim form for the purpose of reflecting the increased arrears of rent. 34. Accordingly, I made an order in terms of the items of relief as sought in the claim form. 1. A Declaration that the Claimant is entitled to possession of ALL AND SINGULAR that certain property, situated and known as Tranquility Gradens, [sic] Orange Hill. Tobago (hereinafter called the subject property ) 2. An Order that the Defendant do deliver vacant possession of the subject property to the Claimant. 3. An Order that the Defendant do pay the Claimant all arrears of rent in the sum of $105,000.00 Dated this 15 th day of September, 2014. M. Dean-Armorer Judge 4 4 Joezel Williams, Judicial Research Assistant Meena Mohammed, Judicial Secretary Page 8 of 8