Sandra Fahie v Gloria Wheatley

• Jurisdiction: British Virgin Islands
• Judge: Ellis J
• Judgment Date: 12 July 2021
• Neutral Citation: VG 2021 HC 45
• Docket Number: Claim No. BVIHCV 2017/0024
• Court: High Court (British Virgin Islands)

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Claim No. BVIHCV 2017/0024

In the Matter of a Parcel of Land and Edifices Located at Long Look/East End, Tortola, More Particularly Described in the Register of Lands as Block 3439B Parcel Number 120 Registration Section Long Look

In the Matter of an Interest Owned by Sandra Fahie also known as Cheryl Fahie in the Parcel of Land, Chattels, Structures and Edifices Located at Long Look/East End, Tortola, More Particularly Described in the Register of Lands as Block 3439B Parcel Number 120 Registration Section Long Look

Between

Sandra Fahie

Claimant

and

Gloria Wheatley

1 ^st Defendant

Denise Stoutt

2 ^nd Defendant

Deron Walters

3 ^rd Defendant

Appearances:

Ms. Carmilita Jamieson and Ms. Nellien Bute of Maximea & Co., Counsel for the Claimant

Mr. Michael Maduro of Grace Chambers, Counsel for the First Defendant

Ms. Anthea Smith and Ms. Reisa Singh of Sabals Law, Counsel for the Second and Third Defendants

Ellis J

1 In the Claim herein, the Claimant principally seeks to enforce an agreement for sale of real property described as Block 3439B Parcel 120 Registration Section Long Look (“the Property”). The Claimant contends that the First Defendant breached the agreement when she sold the Property to the Second and Third Defendants who she alleges were at all material times aware of the existing agreement between the Claimant and the First Defendant.

2 The Claim seeks the following redress against the First Defendant, the initial owner of the Property and the current registered owners, the Second and Third Defendants.

• 1. A declaration/order that there is a binding agreement for sale and purchase of the Property.

• 2. A declaration/order that she has a legal and beneficial interest in the land and or all edifices erected on the Property.

• 3. An order that the transfer of the Property which the First Defendant purported to make the Second and Third Defendants to be declared null and void.

• 4. An order for the specific performance of the agreement for the sale and purchase of the Property.

• 5. An order that the Property be transferred to her in her personal capacity.

• 6. In the event that this Court finds that it cannot grant specific performance of the agreement for sale and purchase, compensatory and aggravated damages.

3 In addition to the above mentioned relief, the Claimant also seeks compensation in the sum of $7,000.00 for the losses incurred and resulting from the breach of covenant for quiet enjoyment which she says arises from the First Defendant's breach of the lease agreement executed by Mr. Berchel Wheatley (deceased) as lessor and the Claimant and her now deceased husband (Mr. Frankie Fahie) which was in place at the time when the Parties entered into negotiations for the sale of the Property. The Claimant also seeks her costs and such further and other relief as may be deemed appropriate.

Factual Background

4 By agreement dated 12 ^th February 2013, Mr. Berchel Wheatley agreed to rent the Property to the Claimant and her now deceased husband, Frankie Fahie. The terms of Agreement are critical to the disposal of this claim are the set out verbatim below:

“I Berchel Wheatley of Long Look Tortola hereby agree to rent my property which is located in Fat Hogs Bay, Tortola to Mr. and Mrs. Frankie Fahie for a period of fifteen years at the price of eight hundred dollars per month. In regards that they have my permission to make addition and improvement to the trailer, if at any time they wish to give up the property I will refund the monies that was spent on my property or they will go rent free until the monies is full refunded.

In addition to that if within 15 years I should consider putting up the property for sale again I would give Mr. and Mrs. Fahie the first preference to purchase.”

5 The Agreement was signed by Mr. Wheatley, Mr. Frankie Fahie and the Claimant. However, at the time of Agreement, the Property was registered in the names of Berchel Wheatley and Gloria Wheatley, the First Defendant.

6 The Claimant asserts that after obtaining permission from Mr. Berchel Wheatley, she and her husband proceeded to develop the Property for the purpose of carrying on a business of a restaurant and bar. She contends that she expended a sum in excess $45,000.00 to build a concrete structure comprising a kitchen, bathroom, restaurant, dining, lounge and entertainment and bar area. Mr. Wheatley died on 24 ^th August, 2014 and following his death, the First Defendant, his widow took over responsibility for the Property. On 6 ^th September, 2014, the First Defendant wrote to the Claimant mandating that she make no more additions to the Property without first consulting with her. 1 The Claimant asserts that she did not make any further improvements on the Property following Mr. Wheatley's death. However, after the passage of Hurricanes Irma and Maria in 2017, the structure on which the Claimant was operating her business on the Property was severely damaged. The Claimant asserts that she needed to restore it to its pre-hurricane condition. 2

7 Following the death of Mr. Wheatley, the Claimant remained in possession of the Property at a reduced rent. Sometime in early 2016, the First Defendant approached the Claimant and her husband about purchasing the Property. From this point, both Parties retained legal counsel. Negotiations concerning the sale and purchase of the Property continued via and exchange of emails and letters between their respective attorneys. By letter dated 12 ^th February, 2016 from Harbour Chambers, Counsel for the First Defendant to Maximea & Co. Law Chambers, Counsel for the Claimant, the purchase price of $45,000.00 was proposed. 3 Following negotiation of the terms of payment of the purchase price, the First Defendant agreed to accept the sum of $45,000.00 payable in two installments. 4 Through her attorneys on 13 ^th May, 2016 the Claimant did in fact tender a cheque in the sum of $30,000.00 to the First Defendant's attorneys. 5 Receipt was acknowledged by the attorney for the First Defendant on the same day.

8 Prior to the completion of the sale, the Claimant contends that a number of issues arose. First she contends that the water supply to the Property was disconnected between 11 ^th May 2016 – 17 ^th May 2016, in breach of the covenant of quiet enjoyment. The Claimant asserts that this disconnection was done pursuant to the direction of the First Defendant. The Claimant then contends that she received a written demand dated 15 ^th August 2016, for outstanding rental payments in the amount of $3,000.00). In this demand letter, Counsel of the First Defendant represented that in the event that the arrears were not paid immediately, then an application could be made for possession of the Property.

9 Finally, the Claimant contends that following a written request (letter on 24 ^th June 2016) in which she sought formal notice of the boundaries of the Property so that the agreement could be concluded. Counsel for the First Defendant advised her that a licensed land surveyor would be retained to identify the boundaries of the Property. A copy of the surveyor's sketch was sent to the Claimant's attorney on 20 ^th July, 2016. 6 It reflected that a small encroachment on the adjoining property by the structure which was constructed on the Property. By letter dated 1 ^st October, 2016, the Claimant's attorney indicated:

• i. That in and around March 2012, the boundaries to the Property had been pointed out by the Wheatleys and on the basis of these representations, the Claimant had developed the Property in good faith. It was expected that the surveyor's report would correspond to these representations.

• ii. The surveyor's sketch does not in fact correspond to these representations and that the adjoining landowners are aggrieved.

• iii. The silence on the issue of the irregular boundaries has caused a delay in the purchase.

10 The letters sought to have the First Defendant indicate when the boundary issues would be fully and finally addressed so that the purchase could be completed.

11 However, in correspondence dated 24 ^th October 2016, the First Defendant through her attorneys returned the deposit of $30,000.00. In that letter, Counsel for the First Defendant referenced an earlier letter of 12 ^th February 2016 in which the Property had been offered “AS IS” for the sum of $45,000.00. Counsel further noted that all of the issues raised by the Claimant had moved away from the sale of the Property “AS IS”. In these premises, Counsel for the First Defendant gave the Claimant notice to quit the Property by 23 ^rd November 2016.

12 In correspondence which followed, the Claimant's attorney, requested an urgent meeting/mediation to have the matter resolved and further enquiring about rumours that the First Defendant was seeking to sell the Property to a third party. 7 No response was received, but on 20 ^th January, 2017, Counsel for the First Defendant wrote the Claimant informing that the Property was sold to the Second and Third Defendants. 8

13 The Claimant filed her claim on 2 ^nd February, 2017 and thereafter applied for an interim injunction on to inter alia, prevent the Second and Third Defendants from having any further dealings with the property until the matter was resolved. By order dated 14 ^th March 2017, the Court granted an interim injunction restraining the First, Second and Third Defendants from having any further dealings whatsoever with the beneficial and further in the alternative the legal interest in the parcel of land and edifices located on the Property. The order further permitted the Claimant to continue to occupy

the Property with quiet enjoyment, restraining the Second and Third Defendants from abusing harassing, threatening and otherwise interfering with the Claimant and her employees, agents, servants, licensees etc. until further order of the...