AS PROMISED TODAY, I take a closer look at the case of Leacock vs Hinds et al (1992), a decision of the Barbados High Court.
The case was actually filed in 1985 and the first defendant, Hinds, died in 1986. Permission was given by the court for the matter to proceed in the absence of a person representing the estate of the first defendant.
The material facts of case were:
(1) The plaintiff was the granddaughter of a Mrs Bradshaw, who was the tenant of Lot 20, Cottage Tenantry, rented from Constant Estates Ltd. for a continuous period of 40 years up to her death on April 24, 1981.
(2) The plaintiff, with the permission of Mrs Bradshaw, occupied part of Lot 20 and constructed a house thereon as a residence for herself and her family and occupied the premises from December 1976 until the court proceedings.
The evidence was that Mrs Bradshaw had promised the plaintiff that after her death she would take over the entire holding. Subsequent to 1976 the plaintiff constructed a bathroom and toilet with a water-borne system of sewage disposal. The plaintiff also had a separate electricity service connected in 1976 with the permission of Mrs Bradshaw.
In December 1979 Mrs Bradshaw permitted her son, the first defendant, to come and live with her on Lot 20 in the chattel house owned and occupied by her. He occupied the said house until his death in 1986.
Qualified tenant
It was accepted that when the Tenantries Freehold Purchase Act, 1980, came in to force, Lot 20 was part of a plantation tenantry and Mrs Bradshaw was a qualified tenant who had a right to purchase the lot. However, she died without purchasing the lot, or serving a notice of intention to purchase.
In May 1981 the plaintiff gave notice to Constant Estates Ltd. of her intention to purchase and she paid rent for about three weeks.
In December 1983 the plaintiff paid Constant Estates $499.60 for the land.
This money was later returned to the plaintiff. The land was then conveyed, on May 1, 1984 to Mrs Bradshaw’s son, who was identified by an official of the Ministry of Housing as the person entitled to purchase.
Significantly, Constant Plantation Estates Ltd (the second defendant) was not insisting that the land be conveyed to any particular person.
Served notice The court was of the view that the plaintiff, having lived on the land since 1979; having paid rent to Constant Estates after the death of Mrs Bradshaw; and having served notice of intention to purchase on Constant Estates, was a qualified tenant and the only person entitled to purchase since the death of Mrs Bradshaw.
The judge said: “I am of the view that the first defendant was not a qualified tenant within the meaning of the act. There is no evidence that the first defendant was even a tenant of the second defendant although he resided on the land during his mother’s lifetime and after her death.”
Not everyone agrees with this decision of the court. Here are some views I have heard expressed.
1. The right to purchase is transmissible on death, and therefore Mrs Bradshaw’s son, as one of her two children, would have had the right to purchase on behalf of the estate and presumably could have been directed to apply for letters of administration to the estate.
Even if the court took the view that as a general principle the right is not transmissible, the fact of the house being used as a residence for a child of the deceased prior to her death, on a “fair, large and liberal construction” of the act, the son should have been granted a right to purchase the lot or at least his share.
2. Others have questioned the right of the plaintiff to purchase the lot based on the fact that she was a licensee of Mrs Bradshaw of only a part of the land. They ask how could she supersede Mrs Bradshaw’s son with respect to the right to purchase of the entire lot?
They submit that the mere payment of rent should not be enough. There is no suggestion that the first defendant was unwilling to pay rent. In fact, he paid in full for the land and they argue that even if there was rent outstanding, Constant Estates may have waived this by conveying the land to him.
3. Another view is that the court could have left the conveyance intact but order that the first defendant convey a half share to the plaintiff based on principles of equitable estoppel.
On this view, by encouraging the plaintiff to erect and expand her dwellinghouse on the land and by promising that she would be able to take over the lot entitled her to an equity in the land which could be satisfied by having the land conveyed to her.
The case of Leacock v Hinds et al is arguably the most complex of the reported cases on the Tenantries Freehold Purchase Act. The views expressed above are all worthy of consideration and are very likely to be explored in future cases.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected].
