Bedran v Benner
| Jurisdiction | Belize |
| Judge | Legall, J. |
| Judgment Date | 18 May 2010 |
| Court | Supreme Court (Belize) |
| Docket Number | 443 of 2005 |
| Date | 18 May 2010 |
Supreme Court
Legall, J.
443 of 2005
Ms. Yogini Lochan for the claimant.
Mr. Nigel. O. Ebanks for the defendant.
Real property - Landlord and tenant — Lease agreement — Claimant landlord instituting proceedings dying and present claimant substituted — Rent due and owing unpaid — Title dispute — Deceased landlord failing to produce proof of ownership of property — Tenancy be estopped — Defendant estoppel from disputing title — Defendant building permanent structures on property with permission of deceased landlord — Proprietary estoppel — Equitable interest in defendant — Order that defendant pay rents due and owing — Claim for mesne profits and possession against defendant dismissed.
Louis Ernest Reyes Jr., (Reyes) filed this claim against the defendant on 5th December, 2005. On the 25th September, 2006, Reyes died. By court order dated 22nd December, 2009 the claimant was substituted for the deceased for the purposes of the claim.
Prior to his death, Reyes made a lease agreement on 29th March, 2001 with the defendant. The agreement was signed by both parties.
The lease agreement states as follows:
The following Lease Agreement is between the following parties. The Lessor, Mr. Luis Reyes, Jr. and the Lessee, Ms. Jessie Benner, to be signed on Mar. 29 2001.
The property is located at #13 Front Street on Caye Caulker and is duly surveyed and registered in Belmopan.
The length of the Lease Agreement is ten (10) years. The fee being One Thousand U.S. dollars ($1,000.00 U.S.) per month. The first year to be paid in full.
All structures will be removed upon payment of the first year's fee.
The Lessor will pay property taxes until construction commences. Any increase thereafter will be the responsibility of the Lessee.
Signed and Accepted
Luis Reyes Jr., Lessor
Witness
Signed and Accepted
Jessie Benner, Lessee
Witness
Sworn and subscribe before me in Caye Caulker on this 29 day of March 2001.
Below the lease agreement, on the same sheet of paper, is printed the words “Purchase Agreement” followed by words purporting to confer on the defendant an option to purchase the property mentioned in the lease; and stating that payments made by the defendant during the term of the lease were to be deducted from any agreed purchase price. This so called purchase agreement was not signed by Reyes or the defendant; and therefore is not legally enforceable as an agreement to purchase or sell the land.
Reyes put the defendant in possession and occupation of the property in March, 2001 in compliance with the lease. The defendant paid the required rent for the property of US $1000 per month to Reyes from March, 2001 to 1st April, 2005 when the defendant stopped the payment of the rent. The claimant brought a claim dated 5th December, 2005, and an amended claim dated 1st March, 2010 claiming:
- Possession of the premises. 2. $120,000 being arrears of rent for the period 1st April, 2005 to 1st March, 2010. 3. Mesne profits. 4. Interest.
The defendant said that the rent was not paid because Reyes failed to produce proof that he had title and ownership of the property. Clause 2 of the defendant's defence states as follows:
“There has not been an outright refusal by the defendant to pay the rent. The defendant has been requesting that the claimant shows her proof of his ownership of the property the subject of the lease. By letter of 4th April, 2005, the claimant was informed about the defendant's concerns regarding ownership of the lot and the fact that the rents were being deposited into a savings account at Atlantic Bank. All the claimant needs to do is show the defendant proof of his ownership of the property and the rents can be paid over to him. The defendant feared that the claimant was not the real owner and that the real owner to lot 13 would one day show up and make demands.”
The defendant also submitted in her written defence that the claimant was not entitled to possession of the premises because of non-compliance with section 15(1) of the Landlord and Tenant Act, Chapter 189. This section deals with re-entry and forfeiture of a lease and requires the claimant to serve a notice on the defendant. I have not found any evidence that any such notice was served on the defendant by the claimant. The submission under section 15 was not however pursued by the defendant in her closing written submissions.
In support of the claimant's evidence that Reyes owned the property leased, an Indenture was tendered which states that Isabella Veronica Stephens sold on 15th April, 1961 property to Reyes. The property sold to Reyes was described in the indenture as “all that piece or parcel of land situate at Caye Caulker and bounded and described as follows.” Given thereafter are the boundaries of the land on the east, west, north and south. But significantly absent from the indenture is the lot number or parcel number of the parcel of the land mentioned in the indenture, so as to prove the nexus between lot 13 mentioned in the lease, and the parcel of land mentioned in the indenture.
Moreover, in support of ownership of the property by Reyes, the claimant disclosed receipts that Reyes paid property taxes to the Caye Caulker Village Council in relation to lot 13 mentioned in the lease, and that he had been in occupation of the lot since 1974 — more than thirty years. The said village council also wrote in a letter disclosed dated 16th February, 2006 that Reyes was the owner of the said lot 13. But on what basis the council came to the conclusion that Reyes owned lot 13 was not stated in letters. It is however indisputable that the council in its correspondence to Reyes treated him as the owner of lot 13.
The claimant also relied, as proof of Reyes' ownership, on a title search conducted on 27th October, 2005 by Marie Escalante. In her search report, Escalante describes a piece of land under the heading “Schedule” and made the following comments: “A search was conducted at the Land Title Unit and it was determined that Louis Ernest Reyes Jr., was the proprietor of the first schedule above referred to….” The factors or evidence that informed that determination were not given. Moreover, the piece of land, described in the said schedule does not mention a lot number nor parcel number so that the nexus point again arises.
The defendant, in support of her submission that Reyes did not have title or ownership of the property, contacted title researcher Mark Mahmud to conduct a title search in respect of the property. Mahmud was not called to give evidence, but in his title search report, he said he found no record of transfer of lot 13 from Matthew Stephens to Reyes who had claimed, by declaration dated 23rd August, 1996, that he bought the said lot from Matthew Stephens. The defendant submitted, based on Mahmud's report, that Reyes was not the owner of lot 13. As a result, the defendant wrote a letter dated 4th April, 2005, as follows:
“I am writing to you today to notify you that until the determination of ownership is made by the Lands Department I am suspending monthly lease payment to you as of 1st April, 2005. Pending their decision, I will be depositing your monthly lease payments starting today into a saving account at Atlantic Bank in Caye Caulker until ownership of the lot is determined.”
Around August, 2005, the defendant contacted yet another title researcher, Frances Griffith, to investigate the title for the property. Miss Griffith said at paragraph 4 of her witness statement that as a result of information she uncovered during her investigation she determined that Reyes was not the owner of any interest in the leased property. Miss Griffith said that the persons entitled to hold the freehold interest in the property were the beneficiaries of the estate of Matthew Stephens.
This witness prepared a report which was tendered in evidence. The purpose of her report was to ascertain the legal status of a piece of land purportedly being lot 13 situate at Caye Caulker Village. In carrying out her research, she found that only one piece of land was conveyed to Reyes; and it was situated across the street from lot 13 which was being investigated. The piece of land conveyed to Reyes was the land described in the said Indenture dated 13th April, 1961, according to Griffith, which was later sold by Reyes in 1999 to two persons Phillip R. Alldritt and Alicia R. Bomhoff.
The history of lot 13, according to the report of Griffith, is that it was conveyed in July, 1904 from William Mayford to Matthew Stephens who died 26th May, 1917. By his will the lot was given for the life of Ellen Stephens, and on her death to her daughter and son Ella Blanche Stephens and Matthew George Stephens respectively. Ella Blanche Stephens died in May, 1939 and the estate was granted to Matthew George Stephens who died in November, 1939. Griffith concluded in her report that “no information was found that lot 13 under the lease agreement was conveyed, sold, deeded or granted through probate to any of the Stephens family members or other individuals. Griffith also concluded that: “No lease reference, no grant reference or old tax records exist to prove that the said lot was leased, granted or conveyed to Reyes.”
The defendant said she knew that one Marie Stephens and one Harold Stephens are descendents of Matthew Stephens. None of these persons came forward to make any claim to lot 13, nor were they called to give evidence. The defendant remains in possession of lot 13, undisturbed by any adverse claim by any title paramount. The defendant's possession of the property has not been, or is not being disturbed by being evicted by any title paramount, or the equivalent of it by anyone. Nor has the defendant acknowledged any title...
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