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EVERYDAY LAW:Terminating tenancy of spots

Cecil McCarthy, [email protected]

EVERYDAY LAW:Terminating tenancy of spots

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LAST WEEK’S ARTICLE was headlined: No Special Rights For Chattel Houses. However, there is in fact a special regime that governs tenants of small holdings, including lands rented for the purposes of siting chattel houses.

First, to terminate the tenancy of a house spot, six months’ notice is required. Secondly, there is a statutory form of notice that must be followed to terminate a tenancy of a house spot.

That form of notice must:

(1) identify the landlord as the person givingthe notice;

(2) describe the land as a house spot and the tenant as being under a contract of tenancy under the Security Of Tenure Small Holdings Act; and

(3) state the reasons for terminating the tenancy.

A failure to follow the statutory form will nullify the notice.

Thirdly, even though the landlord may terminate the tenancy by giving three months’ notice, where any part of the rent payable is in arrears for a period of three months or more, where the tenant pays the rent within the period, the notice is cancelled and is of no effect.

Fourthly, where a tenant of a house spot within a tenantry as defined in the Tenantries Freehold Purchase Act becomes a qualified tenant, he has the right to purchase the lot on which his chattel house is sited.

In last week’s article I also mentioned that certain terms are implied into contracts of tenancy of a house spot under the Security Of Tenure of Small Holdings Act Cap. 237 of the Laws of Barbados. One such implied term is the requirement that the tenant pay the rent reserved as agreed by the parties.

This requirement can affect the security of tenure and the rights of tenants under the tenantries legislation.

A good illustration of this is the case of Ward vs Foster (1992), a decision of the Barbados Divisional Court.

Here a tenant was from 1976 until 1988 in possession of two house spots which comprised part of a tenancy. The tenant could therefore purchase the land, provided he was a qualified tenant.

The facts as accepted by the court showed that he had not paid rent since 1984. In 1987 he was served with a notice giving him six months to quit the land.

In November 1988 he served a notice under the Tenantries Freehold Purchase Act signifying his intention to purchase the two house spots.

Among other things, it was argued by the attorney at law for the tenant that arrears of rent cannot be used as a bar to defeat the right of a qualified tenant to purchase the land since the Tenantries Freehold Purchase Act makes no reference to the non-payment of rent.

After referring to the provisions of the Security Tenure of Small Holdings Act that give to the landlord the right to terminate a tenancy for non-payment of rent, the court observed:

“In the instant appeal, the appellant had failed to pay his rent from 1984 and was in breach of one of his contractual conditions under the tenancy agreement. It was therefore in these circumstances that the respondent exercised her right to terminate the tenancy by serving a notice to quit in writing on the appellant on August 28, 1987 and to deliver up possession on February 28, 1988; that is to say, six months’ notice.

“The evidence further discloses that on November 29, 1988, the appellant served a notice under the Tenantries Freehold Purchase Act signifying his intention to purchase the freehold in the two house spots. The issue to be determined therefore is whether the appellant enjoyed the status of a qualified tenant under the act at the time of serving the notice to purchase on the respondent.

“It is our view that on November 29, 1988, the tenancy agreement between the appellant and the respondent had been effectively terminated by reason of the notice to quit following the non-payment of rent from 1984, which non-payment constituted a breach of a condition to enjoy the house spot with all rights accruing thereto, including the right of a tenant to purchase the freehold of the land, if he is a qualified tenant . . . .

“By not paying the rent for the use and enjoyment of the two house spots from 1984 and beyond, the appellant was in breach of a fundamental term or condition of his tenancy agreement with the respondent and, as such, was not a qualified tenant when he purported to serve the notice on the respondent of his intention to purchase the freehold of the two lots.”

This case illustrates the need to ensure that one is a qualified tenant when serving a notice of intention to purchase. You will not be a qualified tenant if your tenancy has been validly terminated in accordance with the law for non-payment of rent.

Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected]