Supreme Court
Action No. 11 of 1978
6th December, 1978
Malone, CJ.

Mr. J.N. Avilez for the Appellant
Mr. P. Zuniga for the Respondent

Appeal against order of eviction - Landlord and Tenant Ordinance - Whether the relationship established after death of deceased was one of licensee or a legal tenancy - Appeal dismissed - Decision of magistrate upheld - Costs.

J U D G M E N T

By a plaint lodged on the 8th of July, 1978, the Plaintiff/Respondent sought the eviction of the Defendant/Appellant from premises situate at No. 40 Euphrates Avenue in Belize City. Upon the evidence presented, the magistrate held that the Defendant was a bare licensee whose licence had been revoked and ordered that he vacate the premises by 1st April, 1977. Against that order the Defendant appealed.

It is not in dispute that the title to the premises in question lies in the Respondent as administratrix of the estate of George Delgado who died intestate on the 4th July, 1956. At the date of his death the Appellant was in possession of the premises and in occupation of a house which, it is also not in dispute, he was granted permission to erect thereon by his uncle George Delgado. The magistrate found as a fact that the permission so granted was granted about a year before the death of George Delgado and was not, as the Appellant, granted for his life but for an undefined temporary period in order to give him time to find other premises on which to erect his house. Following upon the death of George Delgado, the Appellant in his evidence said that he was called upon to pay rent by the Respondent. That he refused to do so claiming that the house was his, but he promised to pay what is described as a "site tax" of $1.50 per month. The magistrate found as a fact that such payments were made. He regarded them as,
"contributions by the Appellant towards taxes to the municipality"
and added:

"This, to my mind, is only fair and does not operate to grant the Appellant a legal tenancy, or any estate, or interest in property - not even as a contractual licencee".

In my opinion, the finding by the magistrate that the Appellant was a bare licensee correctly expresses the relationship of the parties at the time of the death of George Delgado. For I do not accept the submission of Counsel for the Respondent that, because the Appellant believed that as he was from time to time building up the land with sand, he was not charged rent, the relationship was really that of landlord and tenant with the sand being rent in place of the usual monetary payment. To my mind, even assuming that he is to be believed that he did bring in sand, (and as to that there is very little evidence), the act of bringing sand on to the land is not, I think, in these circumstances to be considered the equivalent of rent as it was not "an ascertainable consideration" within the meaning of section 2 of the Landlord and Tenant Ordinance, Chapter 201. Nor do I accept the submission of Counsel for the Appellant that this case is on all fours with the case of Inwards and Others v. Baker (1965) 1 A.E.R. 446, so that the Appellant should in equity be allowed to remain on the land. The distinction between the two cases lies in this. In Inwards and Others v. Baker (ibid), the landlord created, encouraged and took the initiative in creating the expectation in the Defendant that he could remain on the land. As Lord Denning M.R., said at p. 449:

"The father allowed an expectation to be created in the Defendant's mind that this bungalow was to be his home. It was to be his home for life or, at all events, his home as long as he wished it to remain his home. It seems to me that in the light of that equity, the father could not in 1932 have turned to the Defendant and said: 'You are to go. It is my land and my house'. Nor could he at any time thereafter so long as the Defendant wanted it as his home".

In the instant case, the magistrate accepted the evidence of one Felipa Braddick that the initiative had come from the Appellant and that although her father, George Delgado, did give permission to the Appellant to build upon the land, that permission was given on the understanding that as soon as the Appellant got his own place, he was to move from the premises. In those circumstances, and I can think of no reason for saying that the magistrate's findings of fact was contrary to the weight of the evidence, I do not think it can properly be said that because a licence was given to build on the land, it was a licence coupled to an equity creating in the Appellant an interest in the land.

Upon the death of George Delgado, the bare licence granted by him to the Appellant would have been revoked (see Halsbury's Laws of England, Vol. 23, 2nd Ed. [1026] at p. 431.) That consideration was, I think, overlooked by the magistrate who had posed to himself the question:

"What was the legal relationship created between the deceased and the Appellant at the date of the deceased's death?"

I then must ask myself what, if any, was the relationship after the death of the deceased? The facts as found by the magistrate and which I accept are, as I have said, that the administratrix called upon the Appellant to pay rent and upon his refusing to do so accepted his promise to pay $1.50 per month as site tax. Counsel for the Respondent submitted that that payment was in fact the rent. On the other hand, Counsel for the Appellant adopted the magistrate's construction that it was a contribution towards the taxes payable on the land as a whole to the municipality. He submitted that it not being rent and the Appellant having been on the land after the death of George Delgado for more than 12 years before any steps were taken to evict him, the Respondent cannot now, because of the provisions of section 12(2) of the Limitations Ordinance, Chapter 198, bring an action to have him evicted. As I understand that submission, what is being said is that the Appellant has been in adverse possession for over 12 years as a trespasser on the land if, as the magistrate found, his position was that of a bare licencee during the lifetime of George Delgado. Alternatively, if the finding of a bare licencee was not acceptable to this Court and this Court did not accept the submission that the licence was a licence coupled to an equity, then the relationship, it is said, that was subsisting at the death of George Delgado was a tenancy at will. In that event, as it would have determined one year after Delgado's death by virtue of section 17(1) of the Landlord and Tenant Ordinance, Chapter 201, the Appellant has been in adverse possession for more than 12 years.

I have found that the legal relationship immediately prior to George Delgado's death was, as the magistrate said, that of a bare licencee. Accordingly, it is not necessary for me to consider further than I have already done, the submissions made with respect to the relationship being one of a licence coupled to an equity or a tenancy at will. In my view, after the death of George Delgado, by reason of the promise given to pay what is referred to as site tax, the Appellant acknowledged the right of the Respondent to have possession of the land and entered into a contract for a monthly tenancy on which he had built his house, under the licence granted to him by George Delgado. For that payment, however it might be called, was, to my mind, "rent" within the meaning of "rent" in section 2 of the Landlord and Tenant Ordinance, Chapter 201. The magistrate having found that notices to quit have been served upon the Appellant, I uphold his decision in so far as it provides that the Appellant is to vacate the land. The Appellant will be entitled to remove his house, subject to the provisions of paragraph (e) of section 13 of the Landlord and Tenant Ordinance, Chapter 201, upon his observing the provisions of paragraphs (a) to (d) inclusive of that section. I give to him two months from this day in which to vacate the premises.

The appeal accordingly is dismissed. The costs of the appeal to be taxed and paid by the Appellant.

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