Rent Restrictions Act

Introduction: The Act

The effect of the Act is to create a statutory tenancy. The act comes into effect only where a
regular tenancy has expired and the tenant continues in occupation in breach of a covenant. The act
originated in English wartime legislation. It prevents the landlord exploiting the tenant when there
is a scarcity of housing. The act imposes a fetter on freedom of contract in the form of controls
over the L/T relationship. It undermines the property rights of private property owners, for
example, the right of owners to regain possession of their property at the end of a tenancy. The
intention was for the act to protect tenants, not to augment the rights of Landlords. The act awards
rights to T beyond that of an ordinary tenancy.

Scope of the Act

The Act applies to all building land, dwelling houses, and public or commercial buildings in
existence or let (furnished or not) at the act’s commencement. It was demonstrated in Felix v
Roberts that land will not qualify as building land unless there is a term in the lease requiring the
tenant to build. A dwelling house is all or part of a room or building used as a place of residence.
To be protected under the act they must be separately let to the tenant i.e. neither the landlord nor
any tenant or licensee of his should be sharing the premises with the tenant. Dwelling houses for
which the rent charge includes board and attendance and building land let for 25 years or more are
not covered by the act. It was held in Grant v Bennett that, unlike the UK act, the Jamaican act
will apply whether or not the tenant personally resides in the premises.

The meaning of ‘separately let’ was explained by Wooding CJ in Gabriel v Ramlal thus:

The premises must not be shared either with the landlord or with any tenant of the landlord, or for
that matter…with any licensee of the landlord…To create a separate letting, the tenant must be given
by his landlord exclusive possession of the rented premises without any liability to share any part
thereof as a term or condition of the letting.

Two principal features

According to Carberry JA in Golden Star Manufacturing Co Ltd v Jamaica Frozen Foods Ltd
the Rent Restrictions Act protects tenants against landlords in two ways: a) by controlling the
quantum of rent that can be charged and b) by protecting the tenant’s occupation of the rented
premises. The latter results in a statutory tenancy when the contractual tenancy is duly determined,
but the tenant is allowed to continue in occupation on such terms and conditions of the tenancy as
are consistent with the Act. The provisions related to each of these methods of protection are
protected by sanctions of the criminal law: it is an offence to demand and receive more than the
controlled rent and to summarily eject a tenant by force, fraud or similar means.

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1. Rent control

This has been achieved by the establishment of Rent Boards empowered to fix the rents that may
be required of a tenant.

a) The Act sets a limit on the maximum amount of rent that is permitted to be charged for
premises i.e. the standard rent.
b) It prevents the landlord increasing the rent or charging any fine or premium for the grant,
renewal or continuance of a tenancy of the controlled premises. The landlord is allowed to
charge an increase only where
i. he has improved or altered or repaired the premises beyond normal
ii. where his rates and taxes have increased.

c) It provides the means for the tenant to either recover any excess of rent paid or deduct it
from future rent payments

2. Security of tenure through irremovability

This has been achieved by limiting the power of the courts to make orders requiring the tenant to
give up possession of the premises.

It has often been said that a statutory tenancy under the Acts is not really a ‘tenancy’ at all in the
common law sense of the word; he tenant acquires no estate or interest in the land, but a mere
personal right of occupation- a status of irremovability. Thus he cannot dispose of statutory
tenancy (ST) by assignment, or by will, nor will it vest in its trustee in bankruptcy. In Guyadeen v
Glasgow, Hyatali JA, in the CA of T&T, explained the status of irremoveability thus:

It is well established that whereas a contractual tenant has a proprietary interest in the subject
mater of the demise, and may validly assign it to a third party, a statutory tenant has no such
interest. He merely has, so long as he retains possession, a personal right of occupation as against
the landlord or anyone claiming under him. ..Thus, any purported transfer or assignment of his
personal right, which by its very nature is incapable of being passed to a third person, will vest
exactly nothing in the alleged assignee or transferee…if he abandons, transfers or parts with
possession of the premises, he forfeits his status as a statutory tenant and loses the protection of
the [Act].

The act gives a ST the status of irremovability. The act replaces the status of yearly tenant which T
would have had at common law with that of a ST. T’s common law status cannot be regained, even
after he loses the status accorded him by statute.

In Mangal v Camacho, the tenant was a ST protected by the act for several years before the law
changed and the premises became decontrolled. The landlord sought to increase the rent
significantly and the tenant remained in possession but refused to pay the increase. The landlord
gave him one month’s notice to quit but he continued in possession. It was held that the tenant was
no longer protected by the act so that it had been reasonable for the landlord to demand the
increase. The court held that by remaining in possession the tenant had become a monthly tenant
rather than a yearly tenant which he would have become on effluxion of his tenancy by common

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law had the premises not been subject to the act. He was therefore entitled to only one month’s
notice. The tenant’s remaining in possession after the expiration of that month was implied consent
to the new rental charge.

Landlords seeking to recover possession must show that they would have been entitled to do so at
law by the legal termination of the contractual tenancy. Three things must be borne in mind:

a. The act has the effect of preventing the eviction of a tenant who has made regular
payments of rent charges.
b. act allows recovery of possession
c. Protection of the statutory tenant’s interest

Prevention of eviction

The corporate tenant

It was established under the English act that a corporate tenant could not acquire the status of a
statutory tenant because a company could not be in personal occupation. However the position
appears to be different in the Caribbean where the acts are not limited to dwelling houses. Here it
seems a corporate tenant may be protected by the act.

In Crampad v Thomas, the PC held that a limited company to which a dwelling house had been let
was a statutory tenant so that a notice to quit served on it which did not comply with the act was
invalid.

The non-occupying tenant

The act protects a tenant who is in possession and occupation of the premises. It does not protect a
tenant who is not in occupation and has no intention of returning to the premises. In the case of
Skinner v Geary, the statutory tenant and his wife ad been living elsewhere for 10 years. A
majority CA decision in England held that he had forfeited his right to Rent Act protection.
Scrutton LJ took the view that the Acts were not intended to apply to a tenant who was not in
personal occupation and who had no intention of returning to the premises, but he accepted that a
temporary absence such as where a sea captain was away for several months leaving his wife and
family in occupation would not disqualify the tenant. Green LJ too a different view, stating that
mere non-residence did not justify the court in making an order for possession in law, even though
not physically on the premises, through a licensee occupying on his behalf. I his opinion, it was
only where the tenant had sublet the premises in order o make money that he lost the protection of
the Acts.

A statutory tenancy terminates when a tenant forfeits his status of irremovability by parting with
possession of the demised property. A tenant may part with possession in several ways:

1. by abandoning the premises

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Prolonged, unintermittent absence from the premises without any manifested intention of returning
or in circumstances which do not suggest a likelihood to return constitutes abandonment. In such a
situation the burden falls on the tenant to rebut the presumption that he has not forfeited his status
as an irremovable statutory tenant. He can only rebut the presumption by proving an intention to
return (animus revertendi or possidendi) and a manifestation of that intention (corpus
possessionis). A manifest intention to return which can be objectively ascertained and which
cannot be denied or disputed by the landlord should suffice.

Here it can be said that the object of the Act is “to keep a roof over the tenant’s or someone’s head,
not over an unoccupied shell, and to economise rather than sterilise housing accommodation.” (as
noted in the following case)

Brown v Brash [1948] 2 KB 247

After becoming a ST of premises, the tenant was sentenced to 2 years imprisonment. He left his mistress and their 2
kids in occupation of the premises. She left after a few months taking all but three pieces of the furniture. One year
after the tenant was sentenced, the landlord brought but lost an action for possession of the premises on grounds of
abandonment. The tenant’s relatives cleaned the premises for a few months after that before L took possession of the
premises. Upon the tenant’s release from prison, he brought an action against the landlord for possession and damages
for trespass. The landlord counterclaimed for possession. The CA said that T’s possession had ended on his mistress’
departure without leaving any sign of continued possession and it could not be restored.

This was reaffirmed as a ground of recovery by the CA in the following case.

Hammond v Price (1990) 27 JLR 145

The tenant of a restaurant left Jamaica to reside abroad, leaving the business to be operated by his agents. A few
months after the tenant’s departure, the agents closed the restaurant and put padlocks on the door. The tenant paid no
rent for almost 2 years, after which period he returned, claiming that there had been no abandonment of the tenancy. In
order to rebut the presumption of abandonment, the tenant argued, inter alia, that certain appliances and furniture
which he had left in the premises were sufficient symbols of continued possession. In holding that there had been
abandonment of the tenancy, the Jamaica CA seems to have disregarded the presence of the tenant’s appliances and
furniture and on the facts, was correct in doing so.

Ou Wai v Jordan (1982) CA T&T, No. 21 of 1981 (unreported)

The tenant was one of commercial premises. He left the place for fourteen years. During his absence X carried on the
business. On his return, the tenant sought to claim statutory tenancy alleging that X had been his agent. However, there
had been no accounting between them. The court held that the ST had been terminated by abandonment.

From this case, Hyatali CJ accepted the tenant’s contention that there was difference between the occupation of
residential premises and that of commercial premises. He said:

[counsel for the tenant] is quite right in saying that when you examine the question of personal
occupation in relation to commercial premises, one must take care to understand that business
premises can be occupied by the tenant even though he himself is not occupying them.

2. by assigning the premises

All the statutory tenant has is a personal right of occupation. A ST does not create an estate in land
it cannot confer a right to assign. This is so despite the fact that, in the Caribbean, there is no
express provision to the effect that assignment without the landlord’s consent would be illegal. In

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any case, a statutory tenant who purported to have ‘assigned’ the premises could not claim
protection under the act since on assignment he would have divested himself of all his interest in
the property.

In Guyadeen v Glasgow T assigned the dwelling house let to him to G who entered into
possession. The CA held that by assigning the premises, the tenant had parted with possession and
thus lost the protection of the act.

3. by subletting the premises

A tenant who sublets remains in possession of the term, but has passed the physical possession or
occupation of the demised property to his subtenant. Since the act is designed to protect a tenant in
occupation, a tenant who sublets cannot claim protection under it. This is to prevent a ST turning
the privileges he enjoys under the act into financial profit. A sublease cannot be carved out of a
statutory tenant. A statutory tenant who remains in occupation of one part of the demised premises
but sublets another part which he has never occupied and which he has no intention of occupying
may lose statutory protection for the part sublet [as per Crowhurst v Maidment]. However where a
tenant intends to make all of the demised premises his home but sublets a part of it for a while, he
maintains statutory protection for the whole premises [as per Hibbert v Byrne].

Recovery of Possession

A landlord is not entitled to an ejectment order in respect of premises controlled by the Acts unless
he can establish one or other of the grounds for possession specified by the Acts. Some of the
grounds do not appear to have been litigated in the courts. Those most commonly litigated are:

o that the landlord reasonably requires his premises for a residence or for business, trade or
professional purposes; and
o that the landlord requires the premises for the purpose of being repaired, improved or
rebuilt

Other grounds include:

o where the premises are building land and are reasonably required by the landlord for the
erection of a building or for use of business, trade or professional purposes not involving
the erection of a building
o where rent payable by the tenant is overdue by 30days or more
o breach of some other covenant by the tenant
o omission of nuisance or annoyance to adjoining occupiers by the tenant or person residing
with him
o use of premises for immoral or illegal purposes or amounting it to waste or neglect
o subletting or parting with the possession of the premises without the landlord’s consent

Property reasonably needed for personal use for business, trade, professional or residential
purposes

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S 25(1) RRA (Jamaica) provides that an ejectment order may be made on the ground that:

The premises, being a dwelling house or a public or commercial building, are reasonably required
by the landlord for:

I. occupation as a residence for himself or for some person wholly dependent upon him, or for any
person, bona fide residing or to reside with him or for some person in his whole time employment;
II. use by him for business, trade or professional purposes
III. a combination of the purposes in subparas. I and II above

The meaning of ‘reasonably required’

The leading case on this issue is…

Quinlan v Philip (1965) 9 WIR 269 (CA T&T)

The D, who for some time had been a tenant in an apartment, purchased a house in wished to reside as owner. At the
time of the purchase, the house was occupied by P, her husband, her aunt and seven children. D offered ‘alternative
accommodation I return for P surrendering her tenancy of the house, but P refused the offer on the ground that the
apartment offered was not large enough for herself and her family. D’s application for an ejectment order was refused
by the magistrates. The CA of T&T held that D had failed to show tat he reasonably required the house for his own
use. It was merely his desire to b the owner rather than the tenant of the premises in which he lived that had prompted
his action to eject P. ‘Reasonably required’ means ‘reasonably needed’, and although reasonable need was not equated
with absolute necessity, it did connote something more than mere desire.

However a genuine present need for possession was proved in the following case:

Evelyn v Alkins (1970) 16 WIR 444

The landlord was a married woman whose husband was out of the country. The woman, her 2 children and their
grandmother shared a partitioned bedroom in lodgings which ‘could hardly be considered the most comfortable
accommodation for a woman with 2 children’. It was held that she had shown that he reasonably required possession
of her own house for her personal use.

Gillette v Abouhamad (1966) 9 WIR 278

The landlord, a businessman, purchased two adjoining premises. One was let to the tenant. When his business place
was no longer suitable to his needs he sought possession of the premises let to T in order to relocate his business.
Despite the fact that he attempted to find the tenant alternative accommodation, the court held that his demand was
unreasonable since he knew the other premises was inadequate for his needs when he bought it. The CA reversed the
decision on the ground that the premises was reasonably required by the landlord for his personal use. The court said
that the inadequacy of the other premises did not affect the good faith or reasonableness of his demand without
evidence that better accommodation was available or that the property was purchased for the purpose of dispossessing
the tenant
.
In Jacobs & Sons Ltd v Oudkirk & another, the court said that the unsuitability and inconvenience
of the landlord’s business premises were factors to be considered in assessing the reasonableness
of the request.
Necessity of repairs, reconstruction or building

The RRA provide that a ejectment order may be made on the ground that:

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 The premises being a dwelling house or a public or commercial building are required for the purpose
of being repaired, improved or rebuilt.

Here the statute is a little more lenient towards the landlord. All he has to prove is that he
‘requires’ the property, not that he ‘reasonably requires’ it. The landlord may be able to recover
possession of premises if he shows a genuine desire or intention to recover for the purposes of
repair, improvement or rebuilding. This test is not that difficult to satisfy because he need not
prove an actual or genuine need; it will suffice if he makes a genuine demand and his desire is not
arbitrary or capricious. However the work to be done should not be inconsequential or a mere
sham. The statute does not attempt to stop the landlord by imposing a limitation of reasonableness.
It is up to him to determine what his requirements are.

Douglas v Pereira (1966) 11 WIR 20

The landlord sought to recover business premises let to the tenant in order to effect well-needed repairs. He undertook
that once the property had been repaired it would be subject to a grant of a new tenancy at a controlled rent. The T&T
CA said that the landlord did not have to prove an actual need; it was sufficient if he showed a genuine desire,
intention or want.

Johnson v Morris (1988-89) Carib. Comm LR 351 (CA Jamaica)

L after becoming the landlord of 5 let apartments sought possession on the ground that the premises needed repair. The
court applying the principles in Douglas v Prereira held that the fact that the landlord had already effected repairs on
two other apartments was sufficient evidence that L had a genuine desire to recover the five apartments for repairs.

The Douglas v Prereira test was applied in the following case:

Alleyne v Ali (1966) 11 WIR 69

The appellant was the tenant of premises which he carried on a poultry business. The respondent landlord sought
possession for the purpose of rebuilding. The building was about 60 years old and certain parts, which originally stood
off the ground, were, by the time of the present action, actually resting on the ground. The building was leaning to one
side, its supports were rotting, and it was ‘unsafe and beyond repair’. The CA of T&T held that the landlord did
require possession of the premises for rebuilding.

Reasonableness

An order of judgment will not be made unless it conforms to the specified grounds and is
reasonable in the opinion of the court. The court must consider reasonableness in all cases
regardless of the reason recovery is sought. See Douglas and Prereira above where the court
found it reasonable to grant an ejectment order based on a report by the City Engineer that the
building was potentially dangerous and could not be convenient, economically or effectively
repaired without vacant possession.

One of the factors that the court will consider in access the reasonableness of a grant or refusal is
the availability of alternative accommodation (to be discussed later).

Niles v Shaw (June 15, 1966) CA T&T

Johnson v Morris et al, supra

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Douglas v Prereira, supra

Hardship

The provisions of the act are worded in such a way as to make hardship and reasonableness
separate and mutually exclusive considerations for the court. Whereas reasonableness is a
requirement in all cases, hardship is not relevant to every case. Hardship only need be considered
where the landlord wishes to recover the property for personal use whether for occupation,
business or repairs.

The Act provides that no order or judgement can be made or given unless:
the court…considers it reasonable to make such order or give such judgement,
And unless:
the court is also satisfied that, having regard to all the circumstances of the case, less
hardship would be caused by granting the order or judgment than by refusing to grant it:
and such circumstances…include…the question of whether other accommodation is
available for the landlord or he tenant.

Unlike the UK statute, the Caribbean legislation places the onus of proving hardship on the
landlord. The underlying principle is that the burden of proof falls on the party who would fail if
no evidence were adduced. The landlord has the burden of establishing that less hardship will
result from the granting of the order than from refusing it i.e. that the balance of hardship tilts in
his favour. He must show first, that he reasonably requires the premises and second, that it would
be reasonable to grant the orders asked for. The court decides the second on the balance of
hardship.

In Quinlan v Phillip, Wooding CJ emphasised that the Rent Restriction Ordinance placed the onus
of proof on the landlord to show that less hardship would be caused by granting than by refusing a
possession order. Under the T&T legislation, ‘if in result the issue lies in medio (meaning the
scales are even; there is a medium), it must be resolved in the favour of the tenant.

Niles v Shaw, supra

The landlord sought possession of premises to rebuild it. The tenant was a blind person. The court applying the test of
hardship found that the alternative accommodation found was not adequate for the tenant’s needs. The CA said that
reasonableness and hardship were distinct matters to be considered by the court. They felt obliged not to disturb the
finding that the order of ejectment was reasonable but felt that the question of hardship leaned in favour of the tenant
and the refusal of the order. According to Wooding CJ it was reasonable in the circumstances for he landlord to
recover his premises but the question of hardship depended on balancing the effect of the circumstances on both
parties and in this case perhaps the question of reasonableness should have been decided differently.

The court considered four factors in assessing the balance of hardship:

1) the adequacy of the alternative premises for T’s household
2) the fact that the grant an order would have the effect of depriving T of the companionship of a loved and
trusted relation
3) the expenditure which T would incur commuting to work from the alternative accommodation
4) the fact that the refusal of the order would have the effect of keeping T and his household indefinitely to live
under unhealthy conditions.

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Johnson v Morris , supra

Here, the court was not satisfied that less hardship would be caused by granting the order than by refusing it. The
landlord’s arguments that the repairs were of such a delicate nature that they could not be done while the tenant was in
possession was rebutted by expert evidence that it was possible, but more time consuming and less convenient. The
CA held that the fact that the tenants had been resident there for years and were prepared to take steps to facilitate the
repairs (while the landlord was unwilling to have the tenants remain unless they paid twice the rent) resolved the
balance in favour of the tenants.

Quinlan v Philip, supra

In this case, where the landlord offered the tenant alternative accommodation, the court held that the former had not
satisfied the onus of proof of hardship since the accommodation offered was less adequate and more inconvenient for
the tenant. The fact that the landlord would be disappointed by not getting to live in his own home and would probably
get an inadequate return on the money he had expended did little to tip the balance of hardship in his favour.

Alternative accommodation as a consideration of hardship

The availability of alternative accommodation is not a decisive factor in the grant of an ejectment
order. Since it is not landlord’s duty to provide alternative accommodation, the lack of it does not
preclude a court from making an order. As was pointed out in Evelyn v Alkins, the act does not
require that alternative accommodation be available but the availability of other accommodation is
to be used in weighing the relative hardship that would be caused to the parties if the order were
granted or refused.

Similarly, it was stated in Chung Qui v Lucien (an further emphasises in Gillette v Abouhamad)
that the availability of other accommodation is not made an essential prerequisite for the making of
an order for possession, but is merely one of the matters to be taken into consideration in
determination of the question of reasonableness as well as of balance or hardship.
Hence, in Alleyn v Ali L was granted an ejectment order where the alternative accommodation
available were not suitable at the time of judgment but could with minor repairs and improved
ventilation have been suitable to T’s needs.

However, there are Caribbean cases in which the courts seem to have adopted the position in the
UK which requires that the alternative accommodation be available at the time of the order. In
Niles v Shaw, for example, where the alternative accommodation had no kitchen but the landlord
undertook to construct a kitchen for T, the court held that what should be considered was the
circumstances of the accommodation at the time of judgment not at some subsequent date and the
lack of kitchen made the accommodation inconvenient.

It is suggested that these cases were decided on the wrong principle. It would be better if, in a case
where the alternative accommodation was not readily available, the court averted hardship by
exercising its discretion to either adjourn the application periodically, stay or suspend execution of
an order or judgment, or postpone the date of possession of the demised property.

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Proving the existence of alternative accommodation helps the landlord to discharge the burden of
proving less hardship. On the other hand it may help T to establish hardship to show the contrary,
that efforts made to get alternative accommodation have been in vain.

In considering the alternative accommodation the court will usually compare:

 the user of the rented property at the time of hearing; and

 the situation, size and other physical characteristics of the alternative accommodation.

For example, in Niles v Shaw the CA reversed the finding of the trial judge that the alternative
accommodation which was smaller in size was reasonably adequate for T and his wife on the
grounds that T’s household included not just himself and his wife but also seven other persons. In
Sue Chung Qui v Lucien, the CA held that it was not necessary for the alternative accommodation
offered to be subject to the Rent Restriction Act. These factors will be considered against the
background of tenant’s needs.

Where the unreasonably rejects offers of alternative accommodation it cannot be held adversely
against the landlord that there was no alternative accommodation in weighing the balance of
convenience.

Winsey v Reece (1967) CA T&T, Mag App 382 of 1967 (unreported)

The tenant, a single person, had been offered and refused six different premises as alternative accommodation, and
where he had decline to find accommodation for himself, Wooding CJ held that ‘if a tenant is shown to be
unreasonable in refusing such alternative accommodation as has been offered him, that is a factor which may be put in
the scale against him.’

Jacobs (CR) & sons ltd. v Oudkirk, supra

Worley CJ asserted in this case that:

The onus lies on the tenant to show that he has done his beat to secure other accommodations…He
cannot sit down and do nothing but wait until the landlord had found alternative accommodation for
him.

Reasonableness as opposed to Hardship

In most cases reasonableness is considered alongside hardship. However this is not always the
case.

In Douglas v Pereira where T sold his own property adjacent to the demised premises at a time
when he ought to have known that the landlord would require vacant possession of the premises
for the purpose of repair, the CA considered the fact that the tenant could have used that property
while the repairs were being effected as a circumstance tipping the balance of hardship in the
landlord’s favour.

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Protection of the statutory tenant’s interest

Statutory tenants may be compensated for any loss or damage sustained as a result of the landlord
obtaining an ejectment order by hiding material facts. The premises once obtained, must be used
for the purpose for which the order was sought. The landlord would be guilty of an offence if he
did otherwise without the court’s permission. If the order is given upon condition, the landlord
must comply with these conditions. If he later decides to re-let the premises, an offer of renewal
should be made to the statutory tenant from whom possession was had. [Sec 25 of the RRA
(Jamaica)]

Parting with possession by assignment

A statutory tenancy does not create a term, and therefore cannot be assigned. But the statute
confers on a statutory tenant that the benefit of all the terms or conditions of the original contract
of tenancy so far as the same are consistent with the provisions of the Act’. Scrutton LJ construed
the similar under the English legislation in the case of Keeves v Dean [1924] 1 KB 685 in a
dissenting opinion, when he gave the expression ‘terms and conditions’ and extended the meaning
to include the right to assign. In his lordship’s view, the right to assign, like the right to distain, I
not only an incident which can exist where there is a tenancy, but also a term or condition where
the statutory tenant is entitled as provided under the legislation; and that where a right to assign is
not expressly excepted by the terms of the original contract, a statutory tenancy arising from it can
be assigned.

Bearing this in mind, Scrutton LJ also recognised that a subsection o the statute makes it illegal for
a statutory tenant to give up possession for a valuable consideration except to, of with the consent
of, his landlord, and held that any such assignment would be inconsistent with the statute.

Position in Antigua, Dominica and St. Kitts

There is no provision in the RRA of the above-mentioned states (including Barbuda and Belize),
which expressly enjoins a statutory tenant to ‘observe and be entitled to the benefit of all the terms
and conditions of the original contract of tenancy’. But this provision, together with the other
ancillary proviso making any such term or condition enforceable “so far as the same is consistent
with the provisions of the Act”, can be implied in all situations in which a tenant retains an remains
in possession by virtue of a statute after the expiry or termination of his original contractual
tenancy.

Roe v Russell [1928] 2 KB 117

Gayadeen v Glasgow and Another (1963) 6 WIR 477

Parting with possession by subletting

When a tenant sublets, he reamin in possesson of the term, but not in physical possession or
occupation of the demised propoety. The subtenant acquires this. The Ats are designed to protect a
tenant in occupation. A tennat who is not himself in occupation and whoe term has expired or

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detrmined cannot therefore take advantage of the Acts. As a general rule the tenant loses protection
as a statutory tenant, if he sublets the property. In Gidden v Mills, Greer J concurred on the views
of Swift J, as expressed in Hicks v Scarsdale Brewery Co., that a tenant who has sublet the whole
of the premises let to him is outside the protection of the Act.

Haskins v Lewis [1931] 2 KB 1

The tenant vacate the premise sand sublet part of it to two subtenants. The CA upheld the claim of the landlord that the
tenant thereby forfeited his status as a statutory tenant by subletting the premises. Scrutton LJ observed:

The fundamental principle of the Act is to protect a resident in a dwelling-house, not to protect a
person who is not a resident in a dwelling-house, but making money by subletting it.

Statutory tenancy is not an estate out of which a sublease can be carved.

Skinner v Geary [1931] 2 KB 546

Scrutton LJ observed that a tenant who was found not in occupation of the demised premises or any part of the subject
of the former contract could not avail himself of the benefits of the Acts.

The above principle was cited and approved in the following case:

Crowhurst v Maidment [1952] 2 All ER 808

The tenant had during the pendency of the contractual tenancy, sublet the first and second (or top) floors to other
persons. He lived on the ground floor, and never at any material time resided in any part of the 2 upper floors, which
were at all times sublet. The tenant also never intended to reside on any of these floors. Evershed MR held that by
subletting, the tenant created three separate dwellings and thereby lost the statutory protection of the 2 floors which
were in the occupation of the subtenants.

Berkeley and Others v Papadoyannis [1954] All ER 408

Here the demised premises were a three floor maisonette comprising, on the 1st floor, 2 rooms, on the 2nd floor, three
rooms and on the 3rd floor, four rooms. The tenant found it too large for his personal need s and occupation and
insisted that the negotiations exacted a right to sublet part of it. When the 3 year term of the lease expired, the tenant
held over as a statutory tenant and he and his wife occupied the 2nd floor of the house. They also at different times in
the past occupied the whole of the maisonette. The 1st and top floors were in possession by subtenants.

The landlord based his claim for recovery of possession on the parts which were not occupied by the tenant on the fact
that the tenant had sublet those parts and that he neither occupied nor intended to occupy the 1st and 3rd floors. The
second ground of the claim, which was not argued in the CA, was that suitable alternative accommodation was
available for the tenant and family in the shape of the 2nd floor.

The landlord argued that the Act protected the statutory tenant so long as he retained possession. So long as he sublet
part pf the maisonette, he forfeited the protection of the Act. The CA rejected this argument and distinguished
Crowhusrt on the ground that in that case, it was conceded that the tenant had never at any material time occupied any
part of the two floors and had no intention of ever again residing in any part of either floor. The tenant was therefore
entitled to the protection of the Act.

In Regalian Securities v Ramsden, the HL held that it was only where the landlord can show
abandonment by the tenant of his right to possession (for example) by reason of one or more sub-
lettings so that there is clearly no intention at any time thereafter to resume possession, that the
tenant will lose his statutory right to protection against eviction.

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Disposition by will

Statutory tenancy does not confer a right, which can be assigned or disposed of in any forms which
purports to take effect after death. It cannot be willed.

John Lovibond & Sons Ltd. v Vincent [1929] 1 KB 687

Mrs. Vincent acquired in 1913 a yearly tenancy of a house which she became a statutory tenant after 1921. By her will
made in 1903, at that time when statutory tenancy was unheard of, the D, the daughter of Mrs. Vincent, was made the
executrix and sole beneficiary of the estate of Mrs. Vincent. The D lived with her mother up to the time of her death in
1928. Probate of the will of Mrs. Vincent was given to the D.

The question was whether the deceased could, by her will, assign her right and interest in the premises to her daughter.
The CA was of the view that the right of a ST to retain possession is purely a personal privilege, and as that cannot be
assigned during his life, it cannot be disposed of in a way that will take effect after death. According to Scrutton LJ:

The statute has said nothing about leaving property by will, and as Parliament has said that the
statutory tenant shall not, without the consent of the landlord, assign the dwelling house during his
life, it follows that he cannot assign it by will.

Intestate succession to statutory tenancy of a dwelling-house

Under Section 2(1)(b) of the RRA (T&T), a statutory tenancy by succession is created where the
tenant dies leaving his wife or her family who had been in residence for a period immediately
before the death in possession of the premises.

Maharaj v Constance (1981) High Court, T&T, No. 1611 of 1981 (unreported)

C was residing with a deceased statutory tenant, N (C’s relative), in a chattel house, which he had erected on building
land, let to him by the landlord. The complainant became owner of the land and sought to recover possession of it. C
claimed to be a statutory tenant by succession. The court held that merely occupying the chattel house had not made C
a statutory tenant of the building lot because under the laws of T&T the ownership of the land and the building were
considered separately.

Meaning of ‘resided with’

This has been used in the context of the Acts in the ordinary, natural and common language sense
and involves not technical import. This can encompass a great number of situations so can be
difficult to understand at time. It is required that the successor should have resided with the
deceased ST before his/her death. The claimant member of the tenant’s family should have lived
with or shared for living purposes a dwelling house with the deceased tenant. Difficulties can arise
where the tenant’s family was occupying part of the premises as a subtenant or simply share
facilities.

Collier v Stoneman [1957] 3 All ER 20

The deceased grandmother merely permitted her granddaughter, the P and her husband to occupy and use one of the 2
bedrooms of the property, which was demised to the grandmother. They were also allowed to use and share the kitchen
with her. The grandmother had the other bedroom to herself. The P and her husband contributed substantially to the
payment of the rent her grandmother had to pay to the landlord, the D. The grandmother lived wholly independent

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from the P and her husband. The trial court rejected the claim of the grand-daughter that she was the ST in succession
to her late grandmother, since, according to the trial court the P was not residing with the deceased tenant.

This was overruled by the CA, which found that the P was indeed residing with the deceased before her death, and was
therefore entitled to the protection of the Act.

The justification for overruling the trial court decision was hard to decipher on this case. Jenkins LJ was of the view
that the independent lifestyle of the deceased tenant in matters such as catering, cooking, and window cleaning, and
the fact that as she grew older, she tended to keep increasingly to her own room did not negative residence with the
tenant on the part of the grand-daughter and her family. Slesser LJ, dissenting, opined:

If the grandmother on the one hand and the granddaughter on the other hand lived wholly separate
lives without mutual meetings or domestic co-operation-which is far from the case here- finding
of sub-tenancy might have been justified. Short of that, differing habits of living or independence
with regard to coal, food, or cooking do not seem to me to be criterions by which to judge whether
a person was residing with another.

Who is a member of a statutory tenant’s family?

Pistol, addressing King Henry in King Henry V, Act IV, referred to in the judgement of Evershed
MR in Langdon v Horton [1951] 1 All ER 60 stated:

It is, however, obvious that the word ‘family’ is used in a number of different senses, some wider,
some narrower. ‘Do you have any family?’ usually means ‘do you have nay children?’ ‘We are
having a family gathering’ may include often distant relatives and even very close friends. The
‘family of nations’, ‘the Christian family’, are very wide. His is no new phenomenon. Roman law, as
I understand it, included in the familia all members of the social unit though other rights might be
limited to spouses or heirs.

The word family is not defined or explained in the Acts, thus it is used as an open-ended concept
in the common or popular sense. This could permit changes in the needs, perceptions and attitude
of society. Its meaning is flexible; its applicability to any given set of facts involves a construction
which should be based on a broad, common sense view prevailing at the time of death of the
tenant.

Blood or marital relationships can successfully found a claim for succession to a ST based on
family relationship to a deceased tenant. In addition, a family unit can exist where there is a de
facto relationship which is equivalent to a bond by blood or affinity. It to is however necessary to
define the acceptable degree of consanguinity and the permissible de facto relationship which can
found a familial nexus on which a claim based on family membership within the context of the
Acts can be founded. The closer the kinship, the easier it is to satisfy the criterion of ‘sharing’. The
legally recognise relationships are that of parents, grand parents, (the issue) natural and adopted
children of the tenant or of his/her spouse, their respective siblings, nephews and nieces and the
spouses of such persons. Informally adopted children and those to whom the tenant was in
relationship of in loco parentis.

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Fitzpatrick v Sterling House Ass. Ltd. [1999] 4 All ER 705, 711

Lord Clyde noted that it is possible for persons who are strangers to create family relationships by choice: marriage
and adoption of children are common examples. Hence the family tree would embrace very remote relations.

De facto or Reputed Spouse

A de facto marital heterosexual relationship was recognised by the English courts as capable of
constituting a ‘family’. The Caribbean courts would readily follow the English judicial precedent.
The object of the provision is to protect not only the legal wife but also the other members of the
family unit residing with the tenant at the time of his/her death. It is intended to guarantee that the
protection enjoyed by the tenant is not undermined by the inability of those intimately bound to
him to retain the residence by right after death of the tenant.

The fact that an extra-marital partner was legally married to another person, and or that reason the
couple could not be competently married, is importance as an indication of independence and
stability. But this factor of marriage is not decisive.

Watson v Lucas [1980] 3 All ER 647

Mr. Lucas, the D, was lawfully married and had one child. One year after the marriage, his wife let him to go live in
Ireland where she had 2 children by another man. Mrs. Sullivan, a widow with 2 children, had been protected tenant of
the flat in dispute. Mr. Lucas was 25years when he went and lived with Mrs. Sullivan, who was then 40, in the flat
from 1958 until her death in 1977, i.e. over a period of 19 years. They slept in the same bed, had sexual intercourse,
but never had any children. Luca did not divorce his wife, but declined her offers for reconciliation. He did not want to
leave Mrs. Sullivan, but they never married. They retained their own names, except when they were visiting a club to
which Mr. Luca belonged. He contributed out of his earnings from his work t the housekeeping expenses. The rSent
and other bills, which were all in Mrs. Sullivan’s name, were paid by her.

After the death of Mrs Sullivan, notice to quit was served on Mr. Lucas, who claimed to be a entitled as a member of
the deceased widow’s family to remain in possession of the flat as a successor to her statutory tenancy. In the
proceedings to eject Mr. Lucas from the flat, the widow’s son testified that Mr. Lucas and hi mother lived as if they
were married. It was evident that the relationship between the D and the children were that of step-father and step-
children.

It was decided that the fact that a party to the de facto union was legally married to some other person, though an
important factor, could not be a bar to his/her being a member o the family of his/her de facto union partner. For, in the
unanimous view of the CA, a person can be a member of two families.

Gamans v Ekins [1950] All ER 140

In this case, a differently constituted CA had previously taken the view that 20 years cohabitation without childbirth
could not create and confer the status of member ship of the tenant’s family whether the relationship was platonic
friendship or sexual as between man and wife. Seemingly, the CA was influenced by the immoral and non factual
nature of the habitation. Asquith LJ opined:

To say of two people masquerading as these two were as husband and wife- there being no
children to complicate the picture- that they were members of the same family, seems to me an
abuse of the English language…

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Same-sex Marriages (Homosexuals and lesbians)

The first question is whether same sex marriages are so widespread in the Caribbean as to gain the
recognition of an ordinary man as capable of constituting a family in the context of the Acts.
Secondly, it has to be determined whether such acts fall within the limited permitted by law so as
to gain the protection offered by the statute.

In England, the HL in a bare majority judgement in Fitzpatrick v Sterling Housing Association

Ltd. recognised that a same-sex relationship can found a family within the context of the Rent
Acts. The same position was reached by the New York CA in the case of Braschi v Stahl
Associates (1989), in which under the NYC Rent and Eviction Regulations, a same sex partner of
the deceased tenant was allowed to succeed to the protection enjoyed by the deceased tenant as a
member of the tenant’s family. These authorities cast the burden on the surviving same sex partner
to prove family ties.

The NY CA decision will not lend itself to the Caribbean. For it was based on an extended
definition of family taken from the Oxford English dictionary which defines family to include
members of the household, contrary to the restricted definition of “all those who are nearly
connected by blood or affinity” as propounded by Carega Properties v Sharratt by the House of
Lords. The reason underlying the decision in this case is repugnant to the view that same sex
relationships can constitute a family. It is not also consistent with the principle underlying the
majority judgement of the HL in Fitzpatrick, which to all intents and purposes, has the dispositive
sweep as to this issue in England, but not the Caribbean.

Fitzpatrick v Sterling…, supra

The C/A Fitzpatrick, same-sex partner of the deceased tenant, lived with the decease din a long-sanding close loving
and faithful, monogamous, homosexual relationship. The deceased tenant fell down the stairs and sustained a blood
clot to the brain, and was in a coma for some months. He recovered, but never spoke till he died 8 years later. The A
(having have to give up his job) gave him 24 hours a day care, feeding him and nursing him. His claim to succeed to
the statutory tenancy of the deceased tenant was rejected by the trial judge in a decision which was sustained by a 2:1
majority of the English CA. The HL overturned the CA decision by a mere 3:2 majority.

To note:

He difference between a heterosexual non-marital and same-sex relationship is not, in the opinion
of Nicholls LJ in Fitzpatrick of any significance for determining the scope of the concept family,
in the context of the Act. He noted in the case that

Where sexual partners are involved, whether heterosexual or homosexual, there is scope for the
mutual love and affection and long-term commitment that typically characterize the relationship of
husband and wife. This love and affection and commitment can exist in [both relationships].

Where a same-sex relationship is permanent and stable, he held that there was no rational basis for
not recognising it as constituting a family in the same way a non-marital relationship of the
opposite sex would be.

Lord Clyde intimates what Lord Nicholls has put forward. However, he emphasised the bond of
marriage or at least permanency and stability within the relationship.

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There is a genuine doubt on this statutory provision correlative to same-sex relationships,
considering the chequered history of Fitzpatrick from the trial courts to the HL. It would be
consistent with the rules of interpretation to resolve the doubt by extending the concept in a way
which would deprive landlords of their fundamental property rights.

(See article “what’s sex got to do with it?- the ever contentious issue of succession to
tenancies: Conv. 2005, Jul/Aug, 318-344)

Prohibition of eviction

Under the Jamaica act, the landlord cannot forcibly evict a tenant except under an order of
judgment. The act also provides that any notice to quit served by the landlord must state a lawful
reason for the request. Where that reason is the non-payment of rent, the notice ceases to have
effect if the rent is paid before it expires. This was demonstrated in the case of Richards v Walker.
Rowe JA stated that the effect of the Act (specifically s. 31(2)) is that: “a delinquent tenant, when
presented with a notice to quit for non-payment of rent, has the better part of 30 days within which
to pay up all his arrears. Only if he neglects o do so during the currency of a notice under s 31(1)
ca the landlord rely on that notice for its validity in terminating the tenancy.’

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