Simon v Pollonais, Baptiste-gilliard and Baptiste et Al

• Jurisdiction: Trinidad & Tobago
• Court: High Court (Trinidad and Tobago)
• Judge: Boodoosingh, J.
• Judgment Date: 07 July 2014
• Neutral Citation: TT 2014 HC 263
• Docket Number: CV 2629 of 2011
• Date: 07 July 2014

High Court

Boodoosingh, J.

CV 2629 of 2011

Simon

and

Pollonais, Baptiste-gilliard and Baptiste et al

Appearances:

Ms Alice Daniel-Ferdinand for the claimant

Ms Ria Joseph for the defendant

Real property - Security of tenure — Whether tenancy expired due to defendants' failure to exercise their right to renew — Renewal effected by Notice in writing served on the landlord — Whether the claimant is entitled to possession of the premises — Finding that notice not served within prescribed time as such the statutory lease expired by operation of the law — Scheme and purpose of the Act to facilitate a once and for all transfer of rights from the landlord to tenant — Whether any compensation due to the defendants for the dwelling located on the disputed land — Finding that there was no basis in the Act for compensation — Court to apply Act strictly — Court has no jurisdiction to make an award for compensation — Finding that statutory tenancy expired and there would be no renewal of it — Section 5 (3) and 5 (8) of the Land Tenants (Security of Tenure) Act).

Boodoosingh, J.

1 The claimant is the owner of a plot of land located at Bamboo Village, La Romain. His mother, Christiana Simon, previously owned it. She has died. Before her death, she had made the claimant a joint owner of the land. Upon her death he became the sole owner.

2 The first defendant, Jean Pollonais, was a tenant of Christiana. She had a house on the land. She purported to assign her tenancy to the other defendants, who are her children (all now adults). Over the years that house has been improved and there is now standing affixed to the land a concrete house which by a recent valuation by Royce Realty, agreed by the parties, is worth $350, 000.00.

3 This claim was filed on 13 July 2011. In a previous action between the first defendant and Christiana and the claimant, Jean Pollonais was declared to be a statutory tenant of the land under the Land Tenants (Security of Tenure) Act, 1981 (the Act or the LTA).

4 There are two related matters before the Court. The first is an application by Ian Simon seeking amendment of an order of the Honourable Mr Justice B.P. Maharaj dated 28 November 1997 in the previous action for clause (c) of the order to be vacated.

5 The second is this claim in which the claimant seeks possession of the lands situated at 180 Southern Main Road, Bamboo Village, described in Deed No. 4779 of 1987.

6 The claimant says the defendants are in breach of sections 5(3) and 5(8) of the Act which relate to the failure to pay rent and assigning the tenancy without consent. He says further that the statutory tenancy has expired and the first defendant has not exercised her right of renewal under section 4(3) of the Act. Leases expired on 31 May 2011.

7 A witness statement was filed by the claimant on 3 September 2012. The claimant was cross-examined on the contents of it on 21 June 2013. The land had been owned by his mother Christiana Simon and then by him and her. She has since passed away and he is now the sole owner. No witness statements were filed by the defendants notwithstanding that at the case management stage more than one opportunity was given to them to file.

8 By order of Maharaj J. on 28 November 1997, the first defendant was declared a statutory tenant of Christiana Simon and thus entitled to the protection of the Act.

9 By that 1997 order, the claimant and his mother were restrained from entering the premises and interfering with the first defendant's quiet enjoyment of the premises.

10 The claimant did not communicate with the first defendant except having a letter sent on 6 June 2009 requesting payment of arrears of rent.

11 The first defendant assigned her statutory tenancy and the building on it to herself and the other defendants by Deed registered as No. 5089 of 2000.

12 The main issues are:

• - Whether the tenancy has expired due to the defendants' failure to exercise their right to renew the tenancy?

• - Whether the claimant is entitled to possession of the premises and is any compensation due to the defendants for the dwelling located on the land.

13 Whether or not rent was paid, the claimant took no step to enforce the payment of rent under the Act. Second, the claimant is unable to give admissible evidence whether consent to assign the tenancy was sought from his mother or whether it was granted or refused, and if so unreasonably so.

14 No issue can therefore properly be taken that the tenancy was not properly assigned.

15 The issue is whether there was notice given to the landlord to renew the tenancy. It has been conceded by the defendants in their written submissions that there is no evidence that notice was given to renew the tenancy. The defendants submit that the peculiar circumstances of this case demonstrate that could not, practically speaking, be done. The defendants submit that they only would have known Christiana Simon as the landlord and not the claimant. It was up to the claimant to make himself known to the defendants as the sole landlord to whom notice had to be given.

16 It is clear that the claimant did not make himself known to the first defendant or the other defendants. A letter sent by his attorney dated 6 June 2009 was dispatched by registered post to 108 Southern Main Road, Bamboo Village (as evidenced by the postal receipt) and not to 180 Southern Main Road, Bamboo Village, the correct address. It cannot be supposed from this that the defendants were given notice.

17 The question is upon whom was the onus under section 4 (3) to renew.

18 Section 4(3) states:

“In order to exercise the right of renewal conferred by subsection (2), the tenant shall serve on the landlord, a written notice of renewal at least six months before the expiration of the original term of the statutory lease.”

19 By the Land Tenants (Security of Tenure) (Amendment) Act 2010 (Act No. 10 of 2010) the notice period was extended to “on or” before the expiration of the statutory lease.

20 Regarding notices to be given, section 14 provides as follows:

14

(1) Any notices or documents required to be served on any person may be served by delivering it to that person, or by leaving it at his usual or last known place of abode or business, or by posting it by registered letter addressed to him at his usual or last known place of abode or business, and if so posted, it shall be deemed to have been served at the time when the registered letter would be delivered in the ordinary course of post. (2) If the person is absent from Trinidad and Tobago the notice or document may be served in any such manner as aforesaid on his agent in Trinidad and Tobago. If he is deceased the notice may be served in any such manner as aforesaid on his personal representative. (3) If the person has no known agent in Trinidad and Tobago or is deceased and has no personal representative, the notice or document may be served in such manner as may be directed by the Land Commission.

21 Section 15 provides:

15 Where a tenant having a right under this Act to purchase the land is unable to give notice of his desire to purchase the land because the person to be served with the notice cannot be found, or his identity cannot be ascertained, then, on an application made by the tenant, the Land Commission may give such directions to the applicant concerning the giving of the notice and upon the applicant's compliance therewith the Land Commission may make such order as it thinks fit with a view to the land being vested in the tenant, his executors, administrators or assigns for the like estate and on the like terms (so far as the circumstances permit) as if he had at the date of his application to the Land Commission given notice of his desire to purchase the land.

22 From the above sections the following requirements can be gleaned. Notice is to be given in writing. It can be done personally or by leaving at the last known address or by registered post. If the person is absent from Trinidad and Tobago, notice can be given to the agent. If the person has died it can be given to his legal personal representative. If the person has no agent or no legal personal representative then an application can be made to the High Court (in the absence of the Land Commission) for directions on service. If the tenant cannot give notice regarding purchase because the person cannot be found or his identity is not known, then the tenant could apply to the High Court (in the absence of the Land Commission) for directions.

23 The Act, therefore, does not leave the tenant without options. Thus, knowing the tenancy was due to expire, the defendants had the options to serve it at the last known address or by registered post to the last known address or to the personal representative after Christiana had died. In lieu of all of this they had the option of applying to the Court for directions. It is a matter that the Court can take judicial notice of that prior to the automatic expiration of the statutory tenancies a public campaign was mounted by the government to remind citizens, especially tenants, of the impending expiration of their tenancies and the need for them to act.

24 It is to be noted that Land Tenants (Security of Tenure) (Amendment) Bill 2014 currently before Parliament also seeks to validate notices of renewal served on the State (as landlord) between November 2010 and June 2011 in instances where the landlord was not known or could not be found.

25 The onus must be on the party on whom the burden to act rests. Thus where it is the tenant to serve the notice the tenant must act to serve the notice in any of the manner prescribed by the Act. This was not done. It was not, in my view, the claimant's obligation to make himself known to the defendants. Put another way, in the absence of him making himself known as landlord to the defendants,...