In May 2011, the Defendant entered into occupation of a single retail unit in a property known as Lucille Lightbourn’s Plaza, Downtown, Providenciales (‘the Unit’). Title to the property is in the sole name of Carmen Lucille Lightbourn (‘Lucille’) who is the mother of the 2nd and 3rd Plaintiffs. The property comprises of a number of retail/commercial units. All 3 Plaintiffs gave evidence of an informal agreement whereby various parts of the property have been ‘assigned or gifted’ to different family members by Lucille. The Plaintiffs say the Unit was gifted to Samuel Lightbourn Jr. the 3rd Plaintiff (‘Samuel’).
The Defendant took possession of the Unit on 1 May 2011 and vacated sometime between April and mid-June 2016. The Plaintiffs claim that the Defendant was consistently late in paying rent albeit there is no claim for unpaid rent save for a disputed increase upon which this claim is based.
This claim is predicated on the terms of a formal lease prepared by Sandra Lightbourn, the Second Plaintiff (‘Sandra’), which she says she obtained from an attorney and amended to fit the required need and to reflect oral terms agreed between Samuel and the Defendant (‘the Lease’). Samuel asserts that at all material times, Lucille and Sandra were acting as his agents. This is denied by the Defendant who says that he negotiated the lease terms with Sandra and did not communicate with Samuel until approximately 1 year into his occupation. This is disputed by all the Plaintiffs who say that Samuel negotiated the lease terms with the Defendant and then left the Turks and Caicos Islands. The Defendant’s primary point was that he never contracted with or even spoke to Samuel when the terms of the Lease were being negotiated and that at all material times, he dealt with Sandra. His evidence was that he negotiated the Lease terms with and paid rent to Sandra (or possibly on occasions to Lucille) for the first 8 months to a year until Sandra asked him to make payments directly into Samuel’s bank account.
Proceedings were initially commenced by Samuel in his sole name by way of writ issued on 14 April 2016. The writ was subsequently amended and the following relief sought: $28,000, being arrears of rent from 1st November 2011 to 30th June 2016; $14,138.68, being contractual interest on arrears or rent to 30th June 2016 and contractual interest on total sums due, from 1st July 2016 to the date the matter is resolved by the court.
Held: The claim is dismissed. The Plaintiffs shall pay the Defendants costs to be taxed on the standard basis if not agreed.
I find that whilst the legal position is that the Unit is owned by Lucille, Samuel has an agreed beneficial interest in it and it is controlled by him. I find that the general terms of occupation were agreed by Samuel and the Defendant and a formal lease was drawn up based on those general terms, formally creating the leasehold interest.
Section 46 of the Registered Land Ordinance (Cap. 9.01) (‘RLO’) provides that a lease for a specified period exceeding two years must be registered. S.46 RLO is subject to the provisions of section 14 of the Stamp Duty Ordinance (Cap. 19.05) (‘SDO’) which provides that instruments which are not duly stamped shall not be received in evidence in any proceedings whatsoever.
Lucille was aware of the requirement to register the Lease. The statements of claim in each iteration rely upon the terms of the Lease and in essence seek to enforce those terms I find that the claim was based on the Lease and not on any verbal agreement.
Mr Swann seeks to suggest in his closing submissions and contrary to the pleaded case that the Lease was not in the form described in the RLO and further that the identity of those signing was not verified in accordance with s.108 RLO. Mr Swann seeks to reduce the Lease essentially to what he says is a memorandum of understanding of what was verbally agreed between Samuel and the Defendant. I cannot accept that submission. As I have noted, the claim is based on the Lease. The effect of non-registration of the Lease is that it was not completed. There was therefore no formal lease agreement on which to base the claim.
Mr Swann seeks to persuade me in his written closing submissions, that accordingly, the document can be admitted as evidence of the terms of an oral agreement made between Samuel and the Defendant and he therefore seeks to use it to underpin the claim. In my judgment that argument fails. Section 14 of the SDO makes it clear that any instrument chargeable with stamp duty shall not be admitted into evidence in any proceedings whatsoever. Whilst section 14 SDO has a saving provision, the Plaintiffs did not seek to avail themselves of it. I therefore hold that the Lease is inadmissible as evidence. Whilst I agree that Mr Swann’s argument may have had some force if the Lease had been stamped, it was not and that is, in my view fatal to its admissibility see Pearce -v- Cheslyn.
The failure to have the Lease stamped and registered is fatal to the claim and it is therefore dismissed.