Incorporated Trustees of the Lower Bay School v Ollivierre, Peters and Rotary Club of Bequia
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Thom, J. |
| Judgment Date | 06 June 2014 |
| Neutral Citation | VC 2014 HC 21 |
| Date | 06 June 2014 |
| Court | High Court (Saint Vincent) |
| Docket Number | SVGHCV 333 of 2012 |
High Court
Thom, J.
SVGHCV 333 of 2012
Mr. P.R. Campbell Q.C., Ms. L. Mitchell-Joseph and Ms. K. Francis for the claimant
Mr. R. Williams for the First defendant
Mr. G. Boilers for the Second defendant
Real property - Adverse possession — Whether the title to the property has been extinguished — Rotary Club was not a person for the purpose of the legislation — Whether the trustees were dispossessed — The person claiming adverse possession must be in possession without the consent of the owner — Tenants at will — Tenancy from year to year — Tenancy at will was terminated by the Rotary Club who remained the legal owners of the property.
The Incorporated Trustees of the Lower Bay School is a body corporate established by the Lower Bay School Incorporation Act No. 19 of 1986 (the Trust). The Trust is the owner of a parcel of land with buildings situate at Bequia (the Property).
The Bequia Rotary Club is an unincorporated body of persons governed by a Board of Directors (the Rotary Club). The Rotary Club provides voluntary service to the community. It does not have trustees and its members fluctuate between 16–25 members.
Mr. Clayton Ollivierre is one of the founding members of the Rotary Club and is the current President, while Mr. Sylvannus Peters is a past president and member. The First, Second and Third defendants are collectively referred to as the defendants.
In 1997 the Trust held negotiations with Mr. Chester Peters and Mr. Cecil McKie then President and member respectively of the Rotary Club for lease of the property. The lease was signed by the Trust but it was not signed by the defendants and was never registered. The defendants went into possession of the property in 1997 and has remained in exclusive possession without ever having paid any rent to the Trust.
In 2012 the Trust sought to regain possession of the property and the defendants refused to vacate the property. The Trust instituted these proceedings in which it seeks a declaration that it is the legal and rightful owner of the property and is entitled to immediate possession of the property.
The defendants in their defence denied that they agreed to the terms of a lease. They contend that a draft lease was merely presented to the defendants at or about the time that they took possession of the property. They further contend that they have been in continuous exclusive possession of the property from September 1997 without paying any rent or attorning to the Trust or to any one and the Trust's title in the property has been extinguished and it is barred from bringing an action to recover possession of the property pursuant to the Limitation Act Cap 129.
The defendants filed a counterclaim in which they seek (a) a declaration that the purported lease dated the 30th day of September 1997 is null and void and of no effect in law as against the defendants; and (b) a declaration that the Trust's title to the property is extinguished by virtue of the provisions of the Limitation Act.
Two trustees of the Trust Mrs. Maria Kingston and Mr. Berton King, and Mr. Alvin Jones a former member of the Rotary Club testified on behalf of the Trust.
Mr. Clayton Ollivierre, Mr. Sylvester Simmons and Mr. Sylvannus Peters testified for the defendants.
The evidence of the claimant is that in 1986 the Trust acquired the property for the sum of $90,000. The property was used to house the Lower Bay School. In 1997 the school ceased to function. In the same year negotiations were held with Mr. Chester Peters and Mr. Cecil McKie of the Rotary Club for the Rotary Club to lease the property. A lease agreement prepared by the lawyer of the Rotary Club was signed by the trustees of the Trust and the keys for the building were handed over to Mr. Chester Peters. The Rotary Club took possession of the property and used it to conduct community activities including a sailing and community skills programme. The Rotary Club was given permission to use the property based on the belief that there was a lease. By 2012 the Rotary Club had ceased to conduct community programmes and had rented one of the buildings to a karate school. The trustees sought to recover possession of the property but the defendants refused to deliver up possession of the property. Mr. Jones testified that the property was managed by the members it was never under the control of Mr. Clayton 011ivierre or Mr. Sylvannus Peters.
The Rotary Club is a service organization with a revolving membership that fluctuates between 16–25 persons. The Rotary Club is managed by a Board which is elected annually. Around 1997 negotiations were held with the Trustees for a lease of the property. A draft lease was prepared and signed by the Trustees but the terms were not agreed by the Rotary Club and the proposed lease was never signed by the Rotary Club.
Mr. Peters who was one of the persons who conducted the negotiations on behalf of Rotary Club received the keys for the property. Mr. Clayton Ollivierre and Mr. Sylvester Simmons have been in exclusive possession of the property for the last fifteen (15) years on behalf of the Rotary Club.
Mr. Clayton Ollivierre a founding member of the Rotary Club testified that the terms of the agreement for the lease were not thoroughly discussed with the members. Mr. Sylvester Simmons testified that in 1997 he was a member of the Board of the Rotary Club and Mr. Chester Peters and Mr. Cecil Mckie reported to the Board on the negotiations. The proposed lease was never presented to the Board or the members of the Rotary Club. He believed based on the report of Mr. Peters that they had a lease for 99 years. They only saw the lease agreement when the Trust tried to re-possess the property.
When the Rotary Club took possession of the property the buildings were in a dilapidated state. The Rotary Club made substantial repairs to the main building including changing the roof, tiling the floor, and replacing windows. They did not seek the permission of the Rotary Club or any one before making the repairs.
The sole issue to be determined is whether the Trust's title to the property has been extinguished by virtue of the Limitation Act.
Mr. P.R. Campbell Q.C. submitted that the Rotary Club being an unincorporated body of persons lacks the legal capacity to acquire and hold land like a natural person. While it is usual for unincorporated entities with written constitutions to hold real property indirectly through trustees specifically appointed or elected for that purpose in accordance with the constitution of such unincorporated entities, the principle of trusteeship does not apply since it is common ground that the Rotary Club had no trustees. There is no evidence that the Rotary Club had at all material times the legal capacity to own real property.
Mr. P.R. Campbell Q.C. next submitted that since the Rotary Club lacks capacity to own property it cannot sustain a defence or counterclaim on the doctrine of adverse possession under the Limitation Act because the doctrine of adverse possession rests upon the pre-condition that time can only run in favor of a person who has the legal capacity to be seized of the land in fee simple.
Mr. P.R. Campbell Q.C. next submitted that based on the evidence of Ms. Marie Kingston that she had handed over the keys to Mr. Chester Peters at a meeting held at the property could only be regarded as a voluntary or permissive handing over of possession of the property. A tenancy at will was created. Time will not begin to run while the property was possessed with the consent of the owner. The tenancy at will was not determined until in 2012 when the Trust sought to repossess the land first by correspondence and then by forcibly changing the locks on the buildings. Mr. P.R. Campbell Q.C. referred the Court to several authorities including Woodall on Landlord and Tenant (27th Edition); Standford International Bank Ltd. v. Austin Lapps [2006] UKPC 50; and Ramnarace v. Lutchman [2001] 1 WLR 1651.
Messrs. Boilers and Williams submitted in response that the defendants were not tenants at will but rather a tenancy from year to year was created. The defendants based this proposition on the effect of the provisions of the Statute of Frauds. Messrs. Boilers and Williams contended that the effect of Section 1 is that a lease for a term of years should be in writing and signed by the parties, in default a tenancy at will is created. However the section does not apply to the case at bar as one of the terms of the agreement was that either party may terminate the lease by giving one year notice either at the end of the first year or any subsequent year of the tenancy by a regular notice to quit. The effect is that by operation of law a yearly tenancy was created which fell within the exception of Section 2 of the Statute of Frauds.
Messrs. Boilers and Williams further submitted that the oral agreement which required the parties to pay $1.00 annually and that either party may terminate by giving one year's notice was a contract for a lease and at common law was a tenancy from year to year, see: Clayton v. Blakely 101 ER 1234.
Messrs. Boilers and Williams submitted alternatively that if the Statute of Frauds applies and the oral lease is void a tenancy from year to year would arise if the terms are not inconsistent with a yearly tenancy. The inference of a yearly tenancy can also be drawn from the rent which was to be paid yearly, see: Richardson v. Gifford 110 ER 1127; and Doe D. Rime v. Bell 101 ER 265
Messrs. Boilers and Williams next submitted that pursuant to paragraph 5(1) of Schedule 1 of the Limitation Act the tenancy...
To continue reading
Request your trial