UKPC 1
Privy Council Appeal No 0092 of 2011
David Gopaul on behalf of HV Holdings Ltd (Appellant)
Vitra Imam Baksh on behalf of the Incorporated Trustees of the Presbyterian Church of Trinidad and Tobago (Respondent)
From the Court of Appeal of the Republic of Trinidad and Tobago
JUDGMENT DELIVERED BY
1 February 2012
Heard on 6 December 2011
Jonathan Small QC
(Instructed by Simons Muirhead & Burton)
Reginald T A Armour SC
(Instructed by Collyer Bristow LLP)
The background to the Land Tenants Act
"It evolved as a result of the insecurity of land tenure which followed emancipation. While the workers attempted to escape from the hegemony of the plantation complex, the symbol of coercion and inferiority, they had difficulty in finding land and housing accommodation away from the plantation. The planters had a near monopoly of the land market. The plantations were the only institutions capable of meeting the workers' demand for accommodation. This helped the planters to secure labour. They then introduced a tenancy system where workers became tenants of land and houses on the several plantations under terms and conditions specific to the individual plantations. They were given the house and spot for which they rendered labour in part payment. They were tenants at will. They could be evicted at short notice. And on eviction they had to leave the plantation. What the worker needed was a moveable house, that is, something that the labourer could take with him if and when he was expelled from the dwelling land owned by the plantation owner.
This is the origin of the chattel house."
There is a similar account by Justice H A Fraser of the Supreme Court of Trinidad and Tobago in "The Civil Law and its Administration," BIICL (1966) pp 91-93.
"Everyone knows how widespread and deep-seated the practice of tenants building houses on the lands of their landlords has been in Trinidad and Tobago. It is as old as the abolition of slavery and the introduction of the indentured system in this country. With the progress of time, the movable one-room houses have given place to irremovable dwellings of steel and reinforced concrete, but the law has lagged behind, failing to catch up with and to reflect the realities of today.
Because of the affluence, instead of having chattel houses tenants started to build real solid houses, houses of concrete and steel and as such they continue to call them chattel houses. This problem is peculiar to Trinidad and Tobago, so peculiar so grave, that what we have to do today is literally to change the Constitution so that those tenants would benefit. To do this, we would have to pass this Bill by a three-fifths majority in both Houses of Parliament."
The Bill was passed unanimously by the House of Representatives but ran into technical difficulties in the Senate, where it was committed to a select committee. It emerged from the select committee with a new name, the Land Tenants (Security of Tenure) Bill, and was passed unanimously on 19 May 1981. It was enacted on 1 June 1981, which was the appointed day for its coming into operation.
The provisions of the Land Tenants Act
"'Chattel house' includes a building erected by a tenant upon land comprised in his tenancy with the consent or acquiescence of the landlord and affixed to the land in such a way as to be incapable of being removed from its site without destruction".
In this definition, the word "includes" is important. It is common ground that the definition extends to any building falling within the first part of the definition ("a building erected by a tenant upon land comprised in his tenancy with the consent or acquiescence of the landlord") whether or not it is capable of being removed without destruction. Section 2 also contains a wide definition of "tenant", and "tenancy" is to be construed accordingly.
"Subject to subsection (2), this Act applies to tenancies in respect of land in Trinidad and Tobago on which at the time specified in section 4(1) a chattel house used as a dwelling is erected or a chattel house intended to be used as a dwelling is in the actual process of being erected."
Section 3(2) contains five exceptions, including a tenancy of agricultural land, a tenancy of land owned by a local authority, and a tenancy for a term having more than thirty years unexpired on the appointed day. Section 3(3) provides that the Act does not bind the State, so that land owned by the State is another exception.
"(1) Notwithstanding any law or agreement to the contrary but subject to this Act, every tenancy to which this Act applies subsisting immediately before the appointed day shall as from the appointed day become a statutory lease for the purposes of this Act.
(2) A statutory lease shall be a lease for thirty years commencing from the appointed day and, subject to subsection (3), renewable by the tenant for a further period of thirty years."
Subsection (3) required the tenant to give at least six months written notice in order to exercise his right of renewal, but under the Land Tenants (Security of Tenure)(Amendment) Act 2010 (No 10 of 2010) it is sufficient to give notice on or before the expiration of the original term of the statutory lease. Subsection (5) provides:
"Nothing in this section shall operate so as to affect any mortgage, charge or security existing at the appointed date upon any land the subject matter of a statutory lease and such mortgage, charge or security shall attach to the statutory lease."
"(1) The terms and conditions of any existing tenancy converted into a statutory lease by section 4 shall, subject to this section, be incorporated in the statutory lease as terms and conditions in such lease.
(2) On the conversion of an existing tenancy into a statutory lease, any term or condition of such tenancy inconsistent with the terms and conditions of a statutory lease set out in this section, or with any other provisions of this Act, shall be void to the extent of such inconsistency.
(3) Notwithstanding any other law, the rent under a statutory lease shall be the rent which was payable in respect of the land immediately prior to the appointed day or as varied under section 5A."
Section 5A, added by amendment in 1983, provides for the rent under a statutory lease to be reviewed by the Land Commission, a statutory body set up under the Land Registration Act (No 24 of 1981).
"The tenant shall have an option to purchase the land at any time during the term of the statutory lease at a price not exceeding fifty per cent of the open market value of the land without the chattel house ascertained at the date of the service on the landlord of notice of purchase under section 9(1)."
Further provisions relevant to the exercise of this option are set out in section 5(6) and in section 9. Section 11 confers on the Land Commission a wide jurisdiction to determine questions and claims arising under the Act, including "all matters in dispute whether of law or fact between a landlord and a tenant capable of settlement under this Act irrespective of the value of the house or land."
"From and after the commencement of this Act any agreement between a landowner and another person whereby such other person erects or agrees or undertakes to erect a building which is incapable of removal without destruction on the land of such landowner shall be void unless the agreement is in writing and expressly defines the rights of the parties in respect of the building."
This section emphasises the once-for-all character of the creation of statutory leases. For the future, a tenant or prospective tenant building on land has to look after his own interests and see that his rights are defined in a written agreement.
"There is no dispute or at least the evidence has not been seriously challenged, which points to the fact that a manse was actually in use as a dwelling on the relevant date, which would have been 1 June 1981. So the question turns, then, on what is the proper interpretation of the expressions 'chattel house' and 'tenant' in this particular context."
He went on to say that the language of section 3 of the Land Tenants Act was plain. Unlike the Rent Restriction Act there was nothing in the Land Tenants Act to indicate that the use of the chattel house as a residence had to be the only or the primary use. There was therefore a statutory tenancy and the magistrate was right to dismiss the ejectment complaint.
Submissions before the Board
"Suppose a tenancy is granted to a substantial commercial entity of a warehouse (which the landlord had constructed previously at its own expense) . . . if this tenant then builds a small caretaker's flat on the land (eg to house a security guard), then on the respondents' construction, the tenant would acquire a 30 year lease of the whole of the demised premises including the warehouse."
"'Land' to be included in the notice includes any garage, outhouse, garden, yard and appurtenances which at the time of the notice are let to the tenant with the chattel house and are occupied with and used for the purposes of the house or any part of it by the tenant."
"It seems to me that if Parliament wished to exclude those buildings which were used for the dual purpose of commerce and residence it would not have been difficult to include in section 3(1) the word 'only' so as to limit the user to chattel houses used for dwelling only."
Mr Armour also submitted that the meaning of the primary legislation, the Land Tenants Act, could not be affected by a guidance note in a statutory form issued pursuant to the primary legislation.