Lettsome v Callwood

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Bertrand, J.
• Judgment Date: 28 May 1986
• Neutral Citation: VG 1986 HC 2
• Docket Number: Civil Suit No. 8 of 1983
• Date: 28 May 1986

Court of Appeal

Bertrand, J.

Civil Suit No. 8 of 1983

Lettsome

and

Callwood

Appearances:

Miss Dancia Penn for the plaintiff.

Mr. Archibald, Q.C., with Mrs. Creque for the defendant.

Real property - Landlord and tenant — Rent — Landlord sought recovery of possession on the bases that the tenant had not paid the increased rent and was doing business on the premises contrary to agreement — The defendant claimed that the landlord promised to sell him the land –

Held: the plaintiff's action failed since the relationship between landlord and tenant at common law is based on contract and there was no agreement for rent to be increased — There was also no evidence that the landlord at any time objected to business being done on the land — There was also no evidence that the landlord had promised to sell the property.

Bertrand, J.

1 The plaintiff is the registered proprietor of certain lands divided into house lots known as Parcel No. 175 Block 3038B, Road Town Registration Section, situate at Purcell Estate, Tortola. In 1966, the plaintiff rented a house lot on these lands to the defendant, measuring 50'x50' at a rental of $2.00 per month with permission to build a plywood house with concrete foundation on that lot. A month later, the plaintiff again agreed to rent an adjoining lot to the defendant, but this time for the purpose of a garden plot at a rental of $2.00 per month. The defendant however, denied that that lot was for a garden, but according to the plaintiff's evidence, he had banana trees and other trees on that second lot, but he built another plywood house on that lot. This made a total measurement of 50'x100' and this, according to the plaintiff, was all the land she rented out to the defendant. The defendant built a plywood house with a concrete foundation on lot no. 1. In 1968, the plaintiff went to St. Thomas and on her return in 1973, she found that the defendant had a rum shop attached to the house. The defendant however, was not in Tortola at the time of the plaintiff's return, but the rent of $4.00 per month for both house lots was still being paid. The plaintiff did not object to the house built on the 1ot she rented to the defendant for a garden.

2 It would appear from Exhibit J.C.2, that at the time the defendant rented the two house lots, the land belonged to three persons: the plaintiff's mother, her sister and the plaintiff herself. Sometime after, the whole land was partitioned and the portion allotted to the plaintiff included the two house lots rented out to the defendant. According to Exhibit D.L.9, the rental of the two house lots was raised effective March 1, 1973 to $40.00 per month — letter dated February 2, 1973. There seems to have been no follow up on this and the plaintiff said in evidence that the rent was raised to $17.00 per month and then to $19.00 per month in 1976. This was not denied by the defendant. The reason for raising the rent to $19.00 the plaintiff said, was because of the business being carried on by the defendant in the attachment to the house. The evidence of the defendant was that he added 3 plywood rooms to the house to make it bigger. But he said the house in which he had the business of a rum shop is the house he built on a house lot first rented by one Herman Selwood from the plaintiff when he, Selwood, gave up the house lot. Selwood sold all the materials he had to the defendant. Selwood had already laid a concrete foundation and defendant said the plaintiff agreed to rent that lot to him at $2.00 per month and this was in 1969. From the evidence of the plaintiff, she had no knowledge of this latter house lot being rented to the defendant. Her evidence is that the rent collected was for two house lots at $4.00 per month initially and eventually raised to $19.00 per month. Nowhere in the defendant's pleadings has he made mention of a third lot rented from the plaintiff. But he said in evidence that he built on Selwood's foundation and finished the house in the same year, that is, 1969. That house lot he said is next to his rented lots. The plaintiff agrees that the defendant has four houses on the land rented out to him, one in which he lives and another house next to it both on the main street and two other houses behind the first two houses. But she is convinced that the place in which he sold the alcohol was an attachment to the first house which is on the main street. The defendant also stated in evidence that he bought Selwood's foundation, but he eventually admitted it was the materials only that he bought, and Selwood himself said that it was the materials he sold to the defendant. I believe that the defendant has four houses, but only on the two house lots which the plaintiff had rented out to him, that is, the land measuring 50'x100'. Nowhere in the plaintiff's evidence or for that matter in her Statement of Claim is she claiming rent for more than two house lots. Added to that the defendant could not have seriously contended that he was renting a third house lot from the plaintiff. What he said in evidence was:

“I asked her to rent it for me for $2.00 a month. I took it. I bought concrete foundation and materials from Selwood for $200.00.”

3 Later he admitted he did not buy concrete foundation, and there is no evidence that the plaintiff agreed to rent to him the house lot on which Selwood built the concrete foundation. There is also the uncontroverted evidence that the plaintiff was away in St. Thomas from 1968 to 1973, I do not believe the evidence of the defendant that he built on the house lot where Selwood had the concrete foundation. Even Selwood's evidence is very vague as to whether in fact the defendant built on that concrete foundation. If the defendant took the lot as he said, and built there, then I hold he had no permission to do so. I also believe that the business of the rum shop was being carried on in the attachment to the first house which the defendant built in 1966. The second house built in 1969, I hold must be on the second lot rented to the defendant by the plaintiff, and is not the house which defendant said he built on Selwood's foundation. The third house which was built in 1973, must be behind the first house since the defendant said he built it on the first lot rented out to him by the plaintiff. I believe the plaintiff that the second lot was rented out to the defendant for a garden plot in 1966, but when the defendant built the plywood house on it, she took no objection. The fourth house which the defendant said he built 1980 — 1981, on the second lot must be behind the second house. I therefore believe the evidence of the plaintiff with regard to the placement of the houses on the two lots rented out to the defendant. It is significant to note that if the defendant had built on Selwood's foundation, the acreage according to the Exhibit J.C.l, would not have been 5000 square feet with houses and an adjoining building to house No. 4 of approximately 50 square feet used as a shower and two W.C.=s. In passing, I should state that the plaintiff said in evidence that she objected to the latter construction. It seems to me that this is what she objected to in 1985, but this does not form part of this present action. It is also to be noted that exhibit J.C.l does not say when building No. 4, nor the adjoining building was constructed. I am of the view that the plaintiff has only rented out two house lots to the defendant and it is in respect of these two house lots that the plaintiff is claiming arrears of rent, mesne profits, recovery of possession of land and damages for trespass.

4 Paragraph 3 of the plaintiff's statement of claim reads:

APrior to July 1978, the rent payable for the said land was $19.00 per month and the landlord gave the defendant at least one month's notice of her intention to increase the rental from $19.00 per month to $50.00 per month as from the 1st July, 1978.”

5 In my view, the word “intention” relates back to the date when the letter was written, and that the increased rent would take effect from 1st July 1978. However, the evidence of the plaintiff is that the rent was increased in August, 1979, and not July, 1978, to $50.00 per month. And this is what she said:

“Rent was raised from $2.00 in September 1970, to $17.00 per month. The rent was again raised in January 1977, to $19.00 per month. Rent was again raised in August 1979, to $50.00 per month.”

6 Exhibit D.L.28 letter dated 6th July, 1979, was sent to the defendant by the plaintiff increasing the rent to $70,00 as from August 1, 1979. The plaintiff put in evidence Exhibit D.L.2 the copy of Exhibit D.L.28, but with some additions, and an alteration. She explained the reason for the alteration from $70.00 to $50.00. The plaintiff was quite certain that it was...