Mangal v Camacho

JurisdictionTrinidad & Tobago
CourtHigh Court
JudgeBraithwaite, J.
Judgment Date01 August 1975
Neutral CitationTT 1975 HC 51
Date01 August 1975
Docket Number1734 of 1972

High Court

Braithwaite, J.

1734 of 1972

Mangal
and
Camacho
Appearances:

Dr. Ramsahoye, Q.C. and Z. Hosein for the plaintiff.

Wharton, Q.C. and Thorne, Q.C. for the defendant.

Landlord and tenant - Tenancy — Defendant originally lessee — Continued occupation of premises by defendant after expiry of lease — Acceptance by plaintiff of rent — Whether defendant a monthly tenant or yearly tenant of plaintiff — Whether defendant protected by Rent Restriction Ordinance.

Braithwaite, J.
1

I reserved my decision in this matter in order to consider the submissions made by counsel. After this consideration, I was of the view that the legal issues involved had not been fully discussed and I therefore invited counsel to address me further on the question as to whether or not the defendant was or was not a monthly tenant of the plaintiff. Counsel kindly agreed to do this, and I thank them most sincerely for their assistance.

2

Counsel for the defendant first referred to the judgment in Dougal v. McCarthy, [1893] 1 Q.B. 736; where A.L. Smith, L.J. at p. 743 says this:

“If the landlord consents to such holding over by the tenant, and the tenant consents to remain in possession as tenant, then the implication of law is, unless there is evidence to rebut it, that the tenant holds over from year to year on the terms of the old tenancy so far as they are not with a tenancy from year to year.”

3

Applying this dictum to the instant matter, counsel argued that defendant first held the premises involved under a lease, which terminated by effluxion of time. The original lessor permitted the defendant to remain in possession of the premises. Therefore, as counsel put it, defendant became a tenant from year to year and remained as such up to and after the time that the plaintiff acquired the property.

4

There does not seem to me that there is any doubt about the soundness of this proposition in the normal case where a tenant holds over with the consent of the landlord, express or implied.

5

At p. 31 of Hill and Redman (12 th Edn.) the general law applicable to the presumption of a yearly tenancy when a tenant holds over after the expiration of a lease for a term of year is put like this:

“A tenancy from year to year arises by presumption of law when a person who has entered upon premises, or, having been a tenant, has remained in possession, of premises with the consent of the landlord in such circumstances as to be in the first instance a tenant at sufferance, subsequently paying rent with reference to a yearly holding, provided that there are no circumstances to rebut the presumption.”

6

Counsel for the defendant referred once more in support of the Judgment in Dougal v. McCarthy, [1893] 1 Q.B., the following cases:

  • (i) Lowther v. Clifford, [1927] 1 K.B. at p. 130;

  • (ii) Webb v. Potter et al, (1916), Vol. 85; L.J.K.R.A.

7

All the authorities most clearly indicate that the law is that in normal circumstances, (as I have said before) where a tenant for a term of years holds over after the expiration of his term with the consent the landlord, express or implied, may I say, ipso facto, a yearly tenant.

8

What, however, has to be remembered is this, that most of the cases cited applied to premises which were not “within the Rent Acts”, or, as the statute is called here in Trinidad and Tobago “The Rent Restriction Ordinance.” Now at p.395 of the 11 th Edn, of Cheshire's “Modern Law of Real Property”, the learned author after dealing with the judgment of Lord Justice Smith in Dougal v McCarthy, (supra) says this:- “If, however, the contractual tenant who “holds over” occupies premises that are within the Rent Acts, the landlord has no alternative but to accept the rent, for the tenant becomes a ‘statutory tenant’ and not a tenant holding under a new contractual agreement.’

9

The case quoted in support of this proposition is Morrison v Jacobs, [1945] 1 K.B. 577.

10

This again appears to me to be good law. But what then is the legal position of an occupier of such premises when they by law [in this case, The Rent Restriction (Exclusion of Premises) Order, 1969] cease to be protected by the Rent Restriction Ordinance?

11

Before I attempt to resolve this question, perhaps it may be opportune at this stage to advert to the facts as I have found them and which, if I may say so, are generally agreed.

12

By a Deed of Conveyance registered No-5147 of 1968, the plaintiff became the owner in fee simple of a parcel of land situate at the corner of No.80 Queen Street and No.9 St. Vincent Street, together with the buildings thereon. At the date of the acquisition by the plaintiff of the premises, the defendant was the occupant of the building on the land paying a rent of $95.00 per month. Originally these premises were leased on the 1 st of September, 1954 to one Coelho at a yearly premium of $600.00 payable by twelve months installments of $50.00. Coelho on the 22 nd of December, 1954, assigned the unexpired residue of his term of ten years to the plaintiff on the same terms and conditions as were applicable to his own holding. The term of the 1951 lease expired in 1961 but the defendant continued in occupation of the premises and at the time of the acquisition of the property by the plaintiff eras paying a monthly sum of $95.00 which comprised of the original rental of $50.00 and an additional sum of $45.00 in respect of increased municipal rates and taxes on the premises. The defendant continued to pay to the plaintiff the sum of $95.00 monthly until the 7 th August, 1970, on which date the plaintiff served on the defendant a notice purporting to increase the gent from $95.00 to $750.00 per month. In the meantime the, Rent Restriction (Exclusion of Premises) Order, 1969 had come into operation on the 12 th of June, 1970. This Order, among other things, excluded from the operation of the Rent Restriction Ordinance, Ch, 29, No. 18, “all public and commercial buildings, the standard rent of which on the appointed date (i.e. the 12 th of June, 1970) is or exceeds the rate of six hundred dollars per annum.” The defendant has refused to pay the increased rent of $750.00 and has also refused to give up possession of the premises. There was no evidence in the case that the plaintiff', knew at the time of purchase of the long lease which had expired in 1961. The deed put in evidence of her title was not expressed to be subject to any such tenancy. The following are excerpts from correspondence between the parties:

Firstly, in the receipt dated 4/8/70 these words are found; “…the sum of ninety-five dollars for rent of, Spirit shop situate at No. 9 St. Vincent Street, P.O.S, for the month ending the 31 st July, 1970.

Secondly, in the letter dated 1/10/70 written by the defendant's Solicitor to the plaintiff:

  • (a) in the first paragraph — “…$95.00 as rent for the month of September”.

  • (b) in the second paragraph — “$95.00 in settlement of rent for September.”

Thirdly, in a letter dated 13/10/70 from the plaintiff's Solicitor J.D. Sellier & Co., at the second paragraph there are the words — “rent in respect of the said premises has been increased to the sum of $750.00 per month as from September 1, 1970.

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