A FEW MONTHS AGO I received the following letter, which is the subject of this week’s article.
The letter reads in part:
My mother lived on tenantry land for over 40 years. She died in 2004. She had three daughters who survived her.
The house-spot on which my mother resided was purchased in 2005 by my sister who resides on the land. My other sister and I left home about four or five years before my mother’s death.
After my mother’s death, the sister that lived on the land paid the arrears of rent and the land owner conveyed the land to her.
My mother did not make a will. I wish to know whether as a child I am not entitled to a share in the chattel house as well as the land. My mother did not have a spouse.
The above questions require a consideration of the Succession Act and The Tenantries Freehold Purchase Act.
On the death of the mother intestate her property passes to her children in equal shares, if there is no surviving spouse, in accordance with the Succession Act.
At the date of her death she owned the chattel house, and therefore, this asset will be inherited in equal shares by her three children.
In respect of the land, the issue is more complicated. Based on the facts submitted it is assumed that:
(1) the land is ‘tenantry land’;
(2) that only one daughter was residing on the land at the time of her mother’s death;
(3) the daughter residing on the land paid the rent and purchased the house;
(4) the other daughters did not reside on the land and made no contribution to the rent or the purchase price of the land;
(5) the mother died without having exercised her right to purchase.
Assuming that the mother had not exercised her right to purchase, the issue is whether that right is transmissible to her three children, irrespective of whether they satisfy the statutory criteria laid down by the Tenantries Freehold Purchase Act.
In Leacock v Hinds et al (1992), the Barbados High Court considered the issue of two competing claimants to land in a plantation tenantry. Even though the facts are not on all fours, the case is in my view, helpful in resolving the issue raised.
The material facts were:
The deceased was a tenant of lot 20 Cottage Tenantry which she rented from Constant Estates Ltd. The first defendant was the son of the deceased who had begun to live at his mother a few years before her death. The second defendant was the owner of the land and who had orally agreed to sell it to the plaintiff who had, about five year’s before the deceased’s death, with her permission constructed a house on part of the lot 20.
In the years following the deceased’s death the plaintiff paid rent for the lot to Constant Estates Ltd, but Constant Estates Ltd later conveyed the land to the deceased’s son.
The High Court held that the plaintiff was a qualified tenant within the meaning of the act and had a statutory right to have the land transferred.
The deceased’s son was not a qualified tenant.
The court held that the son was not a qualified tenant: “There is no evidence that [he] was ever tenant of [Constant Estates] although he resided on the land during his mother’s lifetime and after her death. There is no evidence that he paid rent during the years 1981 to 1984 after his mother’s death.”
The court, inter alia, cited the definition of “tenant” under the act. In section 2 “tenant” is defined to mean an individual who occupies a lot comprised in a tenantry pursuant to a tenancy whether that tenancy exists by virtue of a lease, contract of licence. . . .”
Primarily on the basis that the plaintiff was paying rent for the land and had erected a house thereon with the permission of the previous tenant and the landlord, and had occupied the lot the court held that the plaintiff was a qualified tenant.
he court ordered that the conveyance to the son of the deceased be cancelled and the Registrar convey the lot to the plaintiff.
Generally, the Tenantries Freehold Purchase act is intended to confer the right to purchase on a person who occupies a lot comprised in a tenantry. The act also makes provision for a tenant or a sub-tenant who uses the lot as a “habitation for his spouse, child, brother, sister or parent”, even though the tenant or sub-tenant may not be residing on the lot at the same time.
On the facts it appears that only one daughter has met the statutory criteria. It is therefore submitted that she is entitled to the land and it would not be possible to have her conveyance cancelled.