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EVERYDAY LAW: Issues with Tenantries Act

Cecil McCarthy, [email protected]

EVERYDAY LAW: Issues with Tenantries Act

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SINCE THE ADVENT of the Tenantries Freehold Purchase Act, the courts have had to deal with disputes concerning the interpretation of the  act. Several of the decisions were based on whether the plaintiff was a qualified tenant  under the legislation.

However, there are still some outstanding issues that have not been settled by the courts. Two are:

(1) whether the right to purchase under the act  is transmissible on death; and

(2) where there are two houses located on one  lot in a tenantry, which of the two occupiers have the right to purchase, assuming they both have otherwise met the requirements of a qualified tenant, other than payment of rent?

It has been argued that the right to purchase  is transmissible. However, the legislation does not address the transmissibility of the right. For example, if the original tenant dies without  serving notice to purchase, could a beneficiary not residing on the land serve a notice of intention  to purchase on behalf of the estate?

Some argue that right to purchase is a personal one which arises on satisfaction of the statutory criteria. On this view a person only has a right  to purchase after he has satisfied the requirements of the act and served a notice of his intention  to purchase. There are no provisions in the act dealing with the issue of transmission on death as, for example, is found in the English Rent Act 1968  and subsequent rent acts.

Two parties, same land

An example of a case in which two parties living  on different parts of the same land claimed a right  to purchase is the case of Leacock vs Hinds et al (1992). In that case a tenant of land in a plantation tenantry died without having become a qualified tenant, that is, the tenant never served a notice  of intention to purchase.

The tenant was survived by a son who lived  with her on the land from 1979. In 1976 another person occupied a portion of the land with her  consent as well as that of Constant Estates Ltd. (the landlord). This occupier also built a house  on the land.

When the original tenant died in 1981,  the plaintiff (the person who erected the house  on the land) started to pay the rent for the entire  spot and served a notice of intention to purchase a month after the death of the original tenant. Constant Estates agreed to sell the lot to the plaintiff and accepted payment, but later changed its mind  and conveyed the land to the deceased’s son, who had never paid rent.

Not a qualified tenant

The court held that the son was not a qualified tenant within the meaning of the act. The plaintiff was held to be a qualified tenant based primarily  on the fact that she had paid rent; had served the statutory notice to purchase; and of course had met  all the other statutory criteria. The court, therefore, ordered that the conveyance to the son be delivered  up and cancelled, and that the registrar convey  the spot to the plaintiff.

Although the court did not say so, it seems that  a necessary inference from the decision is that the occupier who pays the rent, when all other facts  satisfy the requirements of the act, will be the  person who is the qualified tenant and therefore  will be able to purchase.

In my opinion the tenantries legislation could  be improved with some specific provisions concerning the transmissibility of the right to purchase on death, as well as some guidance on the issue of the right  to purchase where two or more houses are situated on a single lot occupied by different persons  who have both or all met the statutory criteria.

The case of Leacock vs Hinds merits further scrutiny. The result of the decision was that  the estate of the only person who had a right  to purchase up until her death did not benefit  even though her son was an occupant of the house  at the time of her death and thereafter.

Next week I will take a closer look at this case.

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