Supreme Court
Action No. 23 of 1981
March 31, 1982.
Alcantara, J, OBE.

Mr. Michael Young for the Plaintiff.
Mr. Hubert Elrington for the Defendant.

Land lord and Tenant - Oral agreement - Family relations - Whether intention of the parties to create legal relations - Equity - Licence coupled with an equity - How established.

J U D G M E N T

Mrs. Nemesia Kay must have been a very kind-hearted lady. She adopted the Plaintiff, Gloria Orellana, whom she treated like her own daughter. In fact the Plaintiff was the daughter of a one-time common-law husband of Mrs. Kay, who left Mrs. Kay, leaving behind his 10-year old girl.

Mrs. Kay also adopted the Defendant, Wellington Busch, who at one time was a tenant in the downstairs of Mrs. Kay's house.

Mrs. Kay owned Lot 1154 in Belize City. Before she died she did two things. First she allowed Wellington Busch to build himself a house to live in at the back of her house in Lot 1154. He started building the house in 1958.

Secondly, by Will (not probated) she devised her property in Lot 1154 to the Plaintiff and by Deed of Gift dated the 25th April, 1972 (just before her death) she conveyed the whole of the said property to the Plaintiff Gloria Orellana.

The Plaintiff in her Statement of Claim, paragraph 2 alleges:

"2. Lot. No. 1154 was owned by Nemesia Kay deceased who granted permission to the Defendant to live on the premises on the condition that he effect any repairs necessary to any of the houses or erections on the said Lot No. 1154."

The evidence adduced by the Plaintiff is somewhat different. Mrs. Kay made available a plot of land to the Defendant to build himself a house and live therein on condition that he effected repairs, etc.

The Defence as pleaded is that the Defendant undertook to effect the said repairs but as a result of an oral agreement, the terms of which are set out in paragraph 3 of the Defence:

"the said Nemesia Kay promised the Defendant, that if the Defendant would sell his property which formed part of the self aid project in Cinderella Town, and undertook to erect a house for himself on portion of Lot 1154 above-mentioned, and further undertake to do the repairs and maintenance of the fixtures and structures on the said Lot 1154 abovementioned, without any remuneration and further undertake to assist the said Nemesia Kay, with the general, management of the said property, that she the said Nemesia Kay would give the said portion of the property to the Defendant."

The Plaintiff's case is that although initially the Defendant kept his part of the agreement since Hattie he has executed no repairs, and that in any case he was only given a licence to make use of the land whilst he performed his part of the agreement. Consequently she is claiming possession and mesne profits at the rate of $25 per month from the 7th December, 1977 until possession is delivered.

The Defendant's case is that he has performed his part of the contract and is seeking a declaration in the terms of paragraph 10 of the Defence:

"The Defendant now claims a declaration that he is the beneficial owner in fee simple in possession of the portion of Lot 1154 now occupied by him, and that he is entitled to have the legal title of the said portion of Lot 1154 abovementioned, conveyed to him."

There is one main issue and two sub-issues before the Court. The main issue is what was the agreement or understanding entered into between the Defendant and Nemesia Kay. On this point there is much common ground as there is no doubt that the Defendant undertook to execute repairs and that he was provided with a piece of land to build himself a house. I am not able to accept the evidence of the Defendant that he was persuaded by Mrs. Kay to sell his own land in Cinderella Town. This he did because it was convenient for him now that he had found a place to live free of rent. I find that it was a family arrangement for the convenience of both parties. On this point I accept the evidence of the Plaintiff. I find that there was never an agreement for the sale of land but an understanding between a mother and her 'adopted' son that he should have the use of the land. The evidence shows that the parties never intended to enter into a legal relationship.

The two sub-issues are:

(a) Has the Defendant kept his promise to execute repairs? The answer is yes. True only during the lifetime of Mrs. Kay but I find as a fact that his promise was to her personally as owner and not to any subsequent owner.

And (b) Was the Defendant given a licence to make use of the land or was he given the property in the land? Counsel for the Defendant is relying on the case of Margaret Turton and Public Trustees v Real Estate Ltd. (No. 31 of 1962) in support of his case that the Defendant was given the fee simple of the land.

In that case Sir Clifford Inniss was dealing with a situation where there was in existence a contract of sale for valuable consideration and a transfer of land but not perfected by a conveyance. The doctrine of part performance was clearly applicable.

Counsel for the Plaintiff has directed my mind to the case of McCollin v Carter 26 W.I.R. 1 where the dicta of Lord Greene, M.R in Booker v Palmer (1942) 2 All E.R. AT 677 is cited with approval:

"There is one golden rule which is of very general application, namely that the law does not impute intention to enter into legal relationships where the circumstance and the conduct of the parties negative any intention of the kind."

I find that the case of Turton is not of any assistance in this case.

Although Counsel for the Defendant is not primarily basing his claim on promissory estoppel, I think he can rely on the judgment of Lord Denning in Central London Property Trust Ltd. v High Trees House Ltd. (1947) K.B.130 for the rule that -

"where by his words or conduct one party to a transaction makes to the other an unambiguous promise or assurance which is intended to affect the legal relations between them (whether contractual or otherwise), the other party acts upon it, altering his position to his detriment, the party making the promise or assurance will not be permitted to act inconsistently with it."

The present case is in all fours with Inwards v Baker (1965) 2 Q.B. 29 the facts of which are not dissimilar. In his judgment Lord Denning laid down the following rule:

"It is quite plain from those authorities that if the owner of land requests another, or indeed allows another, to expend money on the land under an expectation created or encouraged by the landlord that he will be able to remain there, that raises an equity in the licensee such as to entitle him to stay. He has a licence coupled with an equity."

In that case it was held that the licensee had a licence for life.

There is also a West Indies case which I find helpful, the head note of which is worth quoting. The reference is McClurg v. Rogers, Moore Claimant (1976) 27 W.I.R. 60:

Mr. Alfred Rogers owned a parcel of land of about 15,820 sq ft at Lower Carlton, St. James. In 1936 he permitted his son-in-law Mr. Oliver Moore to build a house on this land, Alfred himself taking part in the construction of the house, using materials supplied by his son-in-law. On completion of the house Mr. Moore and his wife Mary Amelia took up residence therein and continued to live there, according to Mr. Moore even after his wife left him in 1950, but according to his wife until Mr. Moore left her in 1954. In 1955 Mr. Alfred Rogers died and under an unprobated will of 1945 his son was named sole executor and the land was devised to Mary Amelia for her natural life and on her death to Alfred's granddaughter Phyllis Euletha Moore. In 1975 Alfred's son, Mr. George Rogers, instituted proceedings for obtaining a court title to this land as well as to three other parcels of land. He confessed a debt to the Plaintiff who in due course foreclosed on the land. When the advertisement for liens was made Mr. Oliver Moore put in a claim to the land. He claimed that the land was given to him by his father-in-law but that the gift was not evidenced in writing or witnessed by anyone. This was rejected. He also claimed that in 1936 he was put in exclusive possession of the land by his father-in-law who permitted him to build thereon a house of wall and wood and to plant trees, reap fruit and enjoy the property unmolested. He claimed that by virtue of this he became a tenant at will and that having so remained since 1936 he could rely on s3 of the Limitation and Prescription Act cap 232 to defeat any action brought at this time for the recovery of the land. In the alternative he contended that at the lowest he would be a licensee with an equity.

Held - (i) On the facts no intention to create a relationship of landlord and tenant between Mr. Alfred Rogers and the claimant appeared and the claim to a prescriptive right under the statute failed.

(i) On a view of all the facts having especial regard to the relationship of Mr. Alfred Rogers to the claimant and to the conduct of Mr. Alfred Rogers in permitting the claimant to erect on his land a house of the type described and in actually taking part in the construction, the claimant was a licensee with an equity and to that extent his claim succeeded."

I find that the Defendant was given a licence with an equity. The equity was that he could make personal use of the house he built for life. In order that there be no dispute in the future, I would like to spell out what the equity amounts to. The Defendant can live in this house until he dies but he has no right either to rent it or to assign his interest. The equity he has is personal to him only.

I find that the Plaintiff has failed in her claim for possession and consequently dismiss her claim. I make a declaration to the effect that the. Defendant has a licence with an equity, the terms of which I have already stated.

Judgment for the Defendant with costs.

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