Mcquick v L & v Realties Ltd

• Jurisdiction: Jamaica
• Judge: Campbell, J.A,Kerr, P.
• Judgment Date: 23 April 1982
• Neutral Citation: JM 1982 CA 18
• Docket Number: Civil Appeal No. 13 of 1982
• Date: 23 April 1982
• Court: Court of Appeal (Jamaica)

Court of Appeal

Kerr, P. (Ag.), Carey, J.A, Campbell, J.A (Ag.)

Civil Appeal No. 13 of 1982

Mcquick

and

L & Realties Ltd.

Appearances:

Mr. Howard A. Fraser for the appellant

No appearance for the respondent

Real property - Landlord and tenant — Notice to quit — Rent Restriction Act, s. 25

Facts: The appellant tenant of the respondent company was given notice to quit on the ground that the house was for sale. The appeal was based on the ground that the notice was not based on any known circumstances under the Rent Restriction Act, s. 25. The trial judge considered it an oversight on the part of the legislature in not making specific statutory provisions to cover a case such as this. The judge reasoned that the state never intended in general to deprive an owner of property from exercising his right of selling the property as one of the incidents of ownership

Held: Appeal allowed. Resident Magistrate had failed to consider the issue before him.

1 Campbell, J.A. (Ag.): The appellant, Beverley McQuick, appeals to this court from the decision of the learned resident magistrate in the Half-Way Tree Resident Magistrate's Court in which he gave judgment for the respondent, L. & V. Realties Limited and made an order for the appellant to vacate premises not later than the 31st December, 1981.

2 The background to this order is that L. & V. Realties Limited, who appears to be a real estate agent, filed a plaint in the Resident Magistrate's Court in which it described itself merely as the plaintiff, and sought an order against the appellant, Beverley McQuick, for possession of premises No.14 Champlin Avenue in the parish of St. Andrew.

3 When the case came up before the learned resident magistrate, learned counsel on behalf of the appellant intimated as his defence, in limine, that he was taking exception to the validity of the Notice to Quit on the ground that it was a notice which was not in compliance with the Rent Restriction Act. Evidence was led on behalf of the respondent, the gist of which is that the appellant was a tenant of the respondent's company in respect of premises 14 Champlin Avenue in the parish of St. Andrew; that the appellant had been given Notice to Quit and had not complied with the notice. A copy of the Notice to Quit was admitted in evidence as exhibit 1, and it is dated the 3rd day of June 1981 requiring the appellant to vacate the premises on the 31st of July 1981. At the top of the notice is the caption “Reason for Notice — House is for sale.”

4 The evidence before the learned resident magistrate further revealed that there was an agreement for sale of the property; that the vendor was one Miss Joyce Richardson, and that the agreement for sale was concluded in August 1981. The respondent conceded that he was acting, as agent for the vendor, and also that at the time the notice was served the property had not yet been sold. It appears the property had thereafter been sold before the action came on for trial.

5 At the close of the case for the respondent the appellant's counsel intimated, that the appellant would not be giving evidence. He made submission to the magistrate to the effect that notwithstanding that a Notice to Quit had been served, and even though there was no challenge to the validity of the notice in relation to the time given within which the property should be vacated, the appellant was challenging the Notice to Quit on the more substantial ground that it was not based on any of the known circumstances under section 25, of the Rent Restriction Act on which the resident magistrate was empowered to make an order for possession. He rested his submission on this ground.

6 The learned resident magistrate in his reasons for judgment made it clear that he agreed that under section 25, an order for possession could not be made where the reason given is that the house is up for sale. He went on to say that if he had to decide the matter on this narrow premise namely the provision of section 25 he would be bound to give judgment...