David Farquharson and Nicola Farquharson v Everglades Farms Ltd
| Jurisdiction | Jamaica |
| Judge | BROOKS, J. |
| Judgment Date | 14 January 2011 |
| Judgment citation (vLex) | [2011] 1 JJC 1402 |
| Date | 14 January 2011 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2010 HCV 00820 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN CIVIL DIVISION
CLAIM NO. 2010 HCV 00820
Mr Crafton Miller and Miss Celia Barclay instructed by Crafton S. Miller and Co. for the Claimants/Ancillary Defendants.
Mr Lackston Robinson and Miss Deidre Pinnock instructed by The Director of State Proceedings for the Defendant/Ancillary Claimant.
Civil Procedure – Injunction – Claim to prevent defendant ejecting claimants from real property which is their home – Claimants are husband and wife – Property occupied by them by virtue of the employment of the husband – Property previously belonging to employer but sold by employer's receiver –Receiver's action being challenged in court by employer - Defendant is a lessee of the new owner – Status of claimants on the property – Whether claimants entitled to retain possession pending the resolution of the employer's claim
The Claimants, Mr David Farquharson and his wife, Nicola, occupy the great house on a sugar estate known as Hampden Estate. The estate and the great house have been in the possession of the Farquharson family since the 1850's. The property was, however, at least since 1965, owned by a company named Hampden Estates Limited. Mr Farquharson was employed to the company as its managing director and one of the perquisites of his employment was the right to use the great house as his residence. Mr Farquharson has asserted that he is still the managing director of the company, despite the appointment of a receiver for the company.
The receiver was appointed by creditors, including mortgagees of property belonging to the company. This was because the company has had financial challenges. The receiver sold the property to a government controlled entity known as SCJ Holdings Limited (SCJ). SCJ, in turn, sold a portion and leased another portion of the property, including the great house, to the defendant, Everglades Farms Limited. Everglades was granted possession pursuant to the lease and issued a notice to the Farquharsons to quit and deliver up, to it, possession of the great house.
The Farquharsons have brought the present fixed date claim in which they challenge Everglades' right to issue them a notice to quit; they challenge the validity of the notice to quit; they challenge the period allowed to them by the notice to quit; and they seek an injunction preventing Everglades from interfering with their use and occupation of the property, pending the resolution of the company's court action, challenging the receiver's sale of the property to SCJ.
Everglades has filed an ancillary claim, in which it seeks an order for possession of the great house.
The issues which are to be decided are broadly, the effect of the sale on the status of the Farquharsons on the property and secondly, whether Everglades has taken the proper steps to have the Farquharsons removed therefrom. I shall treat with them in turn.
The effect of the sale on the status of the Farquharsons
The Law
It has been established that where a person is employed and while employed, is entitled to occupy, rent-free, a house belonging to his employer, this occupation is by way of a licence (see Ivory v Palmer [1975] I.C.R. 340; 119 Sol. J 405, Norris v Checksfield [1991] 4 All ER 327 ). The licence is deemed ancillary to the contract. Ivory v Palmer is also authority for the principle that where a contract of employment has been terminated, whether or not in breach of contract, the right to occupy the accommodation, provided by the employer, is also terminated.
In Crane v Morris [1965] 3 All ER 77, the English Court of Appeal (by majority) arrived at a similar conclusion. Lord Denning, at page 79 A of the report of that case, characterised such a licence as follows:
‘Once [the employee] ceased to be in that employment, he could be turned out, being given, of course, a reasonable time to go. It is not necessary to give a licensee notice to quit, any more than it is a tenant at will. A demand is sufficient: and a writ claiming possession is itself a sufficient demand; see Martinali v Ramuz [[1953] 2 All ER 892].’ (Emphasis supplied)
The fact that an employee, allowed to occupy property rent-free, and his family living with him, are but licensees, was impliedly recognized by our Court of Appeal in Harris v Johnson (1971) 12 JLR 375. In that case, an employee, occupying in such circumstances, died. His family resisted recovery of the possession by the holder of the paper title, on the basis that they had acquired a title by adverse possession. In ruling in favour of the holder of the paper title, Edun JA stated at page 380 I:
‘Whether or not it was through compassion that [the employee] was allowed to remain on the land or in the cottage, the [family] in their own rights had ceased [on the employee becoming ill and unable to work any more] to be licensees because to the knowledge of the [holder of the paper title] they were occupying the cottage and/or land rent free and from the time when [the employee] was no longer in permissive occupation.’ (Emphasis supplied)
The fact that the employee has been granted exclusive possession of the accommodation does not affect his status as licensee. Exclusive possession, although one of the indicia of a tenancy, is not, by itself, conclusive of a tenancy. In Ramnarace v Lutchman (2001) 59 WIR 511, their Lordships in Privy Council, in giving judgment on an appeal from the Republic of Trinidad and Tobago, stated at paragraph 16:
‘An occupier who enjoys exclusive possession is not necessarily a tenant. He may be the freehold owner, a trespasser, a mortgagee in possession an object of charity or a service occupier. Exclusive possession of land may be referable to a legal relationship other than a tenancy or to the absence of any legal relationship at all.’
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