Bain v Econo Car Rentals Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Rampersad, J. |
| Judgment Date | 22 July 2010 |
| Neutral Citation | TT 2010 HC 211 |
| Docket Number | 1430 of 2005 |
| Court | High Court (Trinidad and Tobago) |
| Date | 22 July 2010 |
High Court
Rampersad, J. (Ag.)
1430 of 2005
Mr. Karl Hudson-Phillips instructed by Ms. Elaine Green for the plaintiff.
Mr. Mark Morgan instructed by Ms. Donielle Charles for the defendant.
Real property - Landlord and tenant — Notice to quit — Claim for recovery of possession of property — Relationship of landlord and tenant ceased in 2003 and with it so did the option to renew — Plaintiff was entitled to possession when this relationship ended — Mesne profits of $30,000.00 per month accepted — Structures affixed to land by defendant were removed without any substantial damages — Plaintiff was not entitled to relief for waste and trespass — Reclaimed lands were intended for the benefit of the demised premises — Plaintiff entitled to possession of disputed and reclaimed land — Mesne profits awarded.
This action was begun by writ of summons filed on 21 May 2003. The plaintiff filed its Statement of Claim on 25 June 2003, and the defendant, its Defence and Counterclaim on 17 September 2003. The Reply and Defence to Counterclaim were filed on 14 November 2003.
The plaintiff claims against the defendant for recovery of possession of property situate at No. 191-193 Western Main Road, Cocorite, possession for certain reclaimed land, mesne profits in respect of both parcels of land and damages for waste. The defendant disputes each of these claims, and counterclaims for declarations relative to said reclaimed land and for the renewal of its lease relative to No. 191-193 Western Main Road, Cocorite.
The deceased, Percival Bain, was the owner of a parcel of land registered as No. 48110 of 1950 (hereinafter referred to as the “demised premises”) which he let to the defendant in or about 1987. The defendant had erected or caused to be erected and affixed several office and other buildings on the said demised premises, which buildings the plaintiff contends became and formed part of the freehold of the demised premises by virtue of their having been affixed to the land.
Prior to the year 1987, the deceased reclaimed approximately 19,999.2 superficial feet of land (hereinafter referred to as “the reclaimed land”) from the sea at the southern boundary of the demised premises and annexed the same thereto. The reclaimed land therefore lies between the southern boundary of the demised premises and the sea. The deceased took and retained possession of the reclaimed land until his death on 8 June 1997.
By clause 6(b) of the deceased's last will and testament dated 29 May 1997, the deceased devised the demised premises to the plaintiff, who was also appointed an executor and trustee of the deceased's estate. Probate of said estate was granted on 11 September 1998, which grant was registered as No. 1950 of 1998. By this time, the plaintiff had taken possession of the demised premises, as well as the reclaimed land.
By lease agreement in writing between the plaintiff and defendant dated 3 November 1999 (hereinafter referred to as “the lease agreement”), the defendant attorned tenant to the plaintiff in respect of the demised premises. The said lease agreement was renewed on or about the 1 November 2000 and again, on or about the 1 November 2001. Thereafter, the 2001 lease agreement having expired on 30 November 2002, the defendant did not exercise its option to renew, nor was there any mutual agreement by the parties as to renewal.
By legal letter dated 12 December 2002, the plaintiff's attorneys-at-law requested that the defendant inter alia, deliver up possession of the demised premises by 31 December 2002. Despite the said letter, the defendant has failed and/ or refused to deliver up possession of the demised premises and wrongfully and unlawfully continues in occupation thereof. A letter of similar content dated 27 February 2003 was again sent to the defendant by the plaintiff's attorneys, this time, in addition, demanding mesne profits for the period 1 December 2002 to 31 December 2003. Notwithstanding the expiry of the lease agreement, and the demands for delivery up of possession thereof, the defendant continues to occupy the demised premises.
On or about 28 March 2003, the defendant wrongfully committed waste and/ or trespass by causing the buildings on the demised premises to be destroyed and by reason thereof, the plaintiff has suffered loss and damage and the value of her reversion has been diminished.
With respect to the reclaimed land, the plaintiff claims that said land was so reclaimed and annexed for the benefit of the demised premises and that the plaintiff is entitled to possession thereof. Hence, subsequent to the death of the deceased, and while the plaintiff had possession of the reclaimed land, the plaintiff avers that the defendant wrongfully and unlawfully entered thereon and continues to remain in wrongful and unlawful occupation thereof. The plaintiff further contends that the defendant wrongfully and unlawfully constructed buildings on the reclaimed land.
The plaintiff claims that she also requested that the defendant deliver up possession of the reclaimed land. However the defendant has failed and/ or refused to so do, in consequence of which the plaintiff has been deprived of the use and enjoyment of the reclaimed land and has sustained financial loss and damage.
Mesne profits at the rate of US $8,000.00 per month from 1 December 2002 to 30 April 2003 and continuing – US $32 000.00
Further, on or about 11 April 2003, the defendant caused a fence to be erected separating the demised premises from the reclaimed land, thereby depriving the plaintiff of her access to and from the sea.
On the basis of the above, the plaintiff claims 16 reliefs, inter alia, possession of the demised premises and the reclaimed land, mesne profits at the rate of US $8,000.00 per month and continuing in respect of the demised premises, and separately, for the reclaimed land, and damages for waste.
The defendant made no admission as to the deceased's death or that he made a will dated 29 May 1997 in respect of which a grant of probate was made on 11 September 1998, neither does it admit the plaintiff's title to the demised premises.
The defendant further denies that the deceased reclaimed the reclaimed land and took possession of it prior to his death in 1997. However if the deceased did reclaim the land in the manner alleged, the defendant denies that the plaintiff took possession of the said reclaimed land after the deceased's death or at all. In fact, the defendant claims that on or before 1987, it entered and remained upon the reclaimed land nec vi, nec clam, nec precario and took possession thereof, and that ipso facto, it dispossessed the plaintiff and her predecessor in title. It is the defendant's contention that the plaintiff's claim to the reclaimed land is barred by the provisions of the Real Property Limitation Ordinance.
The defendant further stated that in reliance upon the plaintiff and deceased's acquiescence (and with the plaintiff's full knowledge and consent), it expended considerable expense and effort in constructing several buildings on the reclaimed land. The defendant denies that the plaintiff ever took possession of the reclaimed land after the deceased's death, and that said land was reclaimed for the benefit of the demised land. The defendant therefore claims possession of the reclaimed land, and denies that it wrongfully and unlawfully entered upon the reclaimed land or that its continued occupation thereof is wrongful or unlawful.
With respect to the lease agreement made between the plaintiff and defendant in 2000 and thereafter renewed in 2001, the defendant states that the plaintiff breached Clause 3 of the latter agreement when she failed and/or refused to allow the defendant to exercise its option to renew the said lease.
The defendant states that the increase in rent to US $8,000.00 by the plaintiff was excessive and unreasonable given its 600% increase from TT $8,000.00 and, as well, in consideration of comparable rents in the area. Hence negotiations for a rent increase were carried out mala fides on the part of the plaintiff. The defendant stated that in effect, it wished to exercise its option to renew, and time not being of the essence in the negotiations for rent increase, the plaintiff was not entitled to determine the agreement and refuse the option to renew upon failure of the parties to agree on a just rent-- particularly in circumstances where the defendant claims that it offered to pay the existing rent to the plaintiff, pending agreement of a new rent, which offer was refused by the plaintiff.
While the defendant admitted the plaintiff's demand for delivery up of possession of the demised premises and mesne profits, it denies the plaintiff's entitlement to either. It asserts that it failed to give up possession of the reclaimed land on the basis that the plaintiff has no right or title thereto.
The defendant further denies destroying the buildings on the demised premises, stating that the structures thereon were erected with its finances and were intended to be temporary in accordance with the terms of the lease with the deceased. The defendant admits that it caused a fence to be erected separating the demised premises from the reclaimed land, and denies that this was wrongfully done or that the consent of the plaintiff was required.
The defendant also denies that the plaintiff has been deprived of the use and enjoyment of the demised and reclaimed land, and denies that the plaintiff has suffered any loss as alleged or at all.
On the basis of its defence, and the plaintiff's failure to provide a written...
To continue reading
Request your trial