lyons vquamina - breach of quiet enjoyment - parking - not a breach unless apartment provide garage...

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LYONS v. QUAMINA ET AL

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Citation # TT 1989 HC 89

Country Trinidad and Tobago

Court High Court

Judge Blackman, J.

Subject Real property

Date June 29, 1989

Suit No. 97 of 1986

Subsubject Landlord and tenant - Covenant for quiet enjoyment - Plaintiff claimed damages for breach of covenant ofquiet enjoyment and damages for trespass - Entrance to premises blocked - Apartments roof removed -Water supply and electricity cut off - Removal of furniture from apartment - Whether claim statute barred -Finding of court that in the case of a continuing breach time runs not from the time of the acts but from thecessation of the acts - Finding of court that the breaches of the covenant for quiet enjoyment and the acts of

trespass were within the period of limitation and statute barred - Judgment for the plaintiff - Court awardedspecial damages of $33,940, general damages of $2,000 and exemplary damages of $8,000.

Full Text Appearances:

Mr. Gaston Benjamin for plaintiff

Mr. Phillip for defendants

BLACKMAN, J.: This is an action for breach of the covenant for quiet enjoyment and trespass.

The plaintiff ("the tenant") rented an apartment at Arnos Vale Road, Plymouth, Tobago from the firstdefendant ("the landlady"). The second defendant is the daughter of the landlady, and the third defendant isthe husband of the second defendant. (end of page 1)

At first the relationship between the landlady and the tenant was quite amicable. Later however difficultiesarose between them. The landlady testified that the good relationship between herself and the tenantdeteriorated because he was refusing to repay a loan of $3,000.00 made by her to him for the purpose ofpurchasing a vehicle. According to the landlady this was the reason why she wanted him out of theapartment.

Now, the tenant on the other hand said that it was when he refused to pay an increase of rent on the groundthat it was not permissible under the Rent Restriction (Dwelling Houses) Act. His evidence was that theoriginal rent in 1977 was $100.00 per month. That sum was later increased, he said, he said to $200.00, andstill later to $320.00. The defendants admitted both increases in rent on the pleadings. However, the landladytook up a contrary position in her testimony.

The landlady is an old lady; I think however, that she is quite clever in spite of her age; in spite of her age hermind in my view is still acute. She knows when to say she does not remember or that she does not know. In

answer to attorney for the tenant she stated that we are in the year 1996. This answer was given not becauseshe is in her dotage; she was just being either difficult or clever. She at first said when she rented the tenantthe apartment the rent was $100.00 per month. Later the answer on that was that she thought it was $100.00per month. In other words, she could not remember. I believe that the landlady just came to deny everythingwhen she thought it would be damaging to her case or to say she did not remember when it suited her.

When Mr. Cordner visited the apartment on 13th June, 1982 he said the roof was off and also the celotex;that is, the ceiling. The landlady lives in a building on the same premises. It is hardly likely that she would nothave known of this fact. Yet she said she did not know that the roof had been removed. It is difficult to believeanything which the landlady had said in evidence because I think her credibility had been severely
http://carilaw.cavehill.uwi.edu/results.aspx?AC=SEE_ALSO&QF0=Country&QI0==%22Trinidad+and+Tobago%22&XC=/results.aspx&BU=http%3A%2F%2Fcarilaw.cavehill.uwi.edu%2FAdvSearch.aspx&TN=carilaw&SN=AUTO10186&SE=854&RN=0&MR=10&TR=0&TX=1000&ES=0&CS=0&XP=&RF=WebBrief&EF=&DF=WebFull&RL=0&EL=0&DL=0&NP=255&ID=&MF=CariLAWWPMSG.INI&MQ=&TI=0&DT=&ST=0&IR=24284&NR=0&NB=0&SV=0&SS=0&BG=&FG=&QS=&OEX=ISO-8859-1&OEH=utf-8http://carilaw.cavehill.uwi.edu/results.aspx?AC=SEE_ALSO&QF0=Country&QI0==%22Trinidad+and+Tobago%22&XC=/results.aspx&BU=http%3A%2F%2Fcarilaw.cavehill.uwi.edu%2FAdvSearch.aspx&TN=carilaw&SN=AUTO10186&SE=854&RN=0&MR=10&TR=0&TX=1000&ES=0&CS=0&XP=&RF=WebBrief&EF=&DF=WebFull&RL=0&EL=0&DL=0&NP=255&ID=&MF=CariLAWWPMSG.INI&MQ=&TI=0&DT=&ST=0&IR=24284&NR=0&NB=0&SV=0&SS=0&BG=&FG=&QS=&OEX=ISO-8859-1&OEH=utf-8http://carilaw.cavehill.uwi.edu/results.aspx?AC=SEE_ALSO&QF0=Court&QI0==%22High+Court%22&XC=/results.aspx&BU=http%3A%2F%2Fcarilaw.cavehill.uwi.edu%2FAdvSearch.aspx&TN=carilaw&SN=AUTO10186&SE=854&RN=0&MR=10&TR=0&TX=1000&ES=0&CS=0&XP=&RF=WebBrief&EF=&DF=WebFull&RL=0&EL=0&DL=0&NP=255&ID=&MF=CariLAWWPMSG.INI&MQ=&TI=0&DT=&ST=0&IR=24284&NR=0&NB=0&SV=0&SS=0&BG=&FG=&QS=&OEX=ISO-8859-1&OEH=utf-8http://carilaw.cavehill.uwi.edu/results.aspx?AC=SEE_ALSO&QF0=Judge&QI0==%22Blackman,+J.%22&XC=/results.aspx&BU=http%3A%2F%2Fcarilaw.cavehill.uwi.edu%2FAdvSearch.aspx&TN=carilaw&SN=AUTO10186&SE=854&RN=0&MR=10&TR=0&TX=1000&ES=0&CS=0&XP=&RF=WebBrief&EF=&DF=WebFull&RL=0&EL=0&DL=0&NP=255&ID=&MF=CariLAWWPMSG.INI&MQ=&TI=0&DT=&ST=0&IR=24284&NR=0&NB=0&SV=0&SS=0&BG=&FG=&QS=&OEX=ISO-8859-1&OEH=utf-8http://carilaw.cavehill.uwi.edu/results.aspx?AC=SEE_ALSO&QF0=Subject&QI0==%22Real+property%22&XC=/results.aspx&BU=http%3A%2F%2Fcarilaw.cavehill.uwi.edu%2FAdvSearch.aspx&TN=carilaw&SN=AUTO10186&SE=854&RN=0&MR=10&TR=0&TX=1000&ES=0&CS=0&XP=&RF=WebBrief&EF=&DF=WebFull&RL=0&EL=0&DL=0&NP=255&ID=&MF=CariLAWWPMSG.INI&MQ=&TI=0&DT=&ST=0&IR=24284&NR=0&NB=0&SV=0&SS=0&BG=&FG=&QS=&OEX=ISO-8859-1&OEH=utf-8http://carilaw.cavehill.uwi.edu/results.aspx?AC=SEE_ALSO&QF0=Subject&QI0==%22Real+property%22&XC=/results.aspx&BU=http%3A%2F%2Fcarilaw.cavehill.uwi.edu%2FAdvSearch.aspx&TN=carilaw&SN=AUTO10186&SE=854&RN=0&MR=10&TR=0&TX=1000&ES=0&CS=0&XP=&RF=WebBrief&EF=&DF=WebFull&RL=0&EL=0&DL=0&NP=255&ID=&MF=CariLAWWPMSG.INI&MQ=&TI=0&DT=&ST=0&IR=24284&NR=0&NB=0&SV=0&SS=0&BG=&FG=&QS=&OEX=ISO-8859-1&OEH=utf-8http://carilaw.cavehill.uwi.edu/results.aspx?AC=SEE_ALSO&QF0=Judge&QI0==%22Blackman,+J.%22&XC=/results.aspx&BU=http%3A%2F%2Fcarilaw.cavehill.uwi.edu%2FAdvSearch.aspx&TN=carilaw&SN=AUTO10186&SE=854&RN=0&MR=10&TR=0&TX=1000&ES=0&CS=0&XP=&RF=WebBrief&EF=&DF=WebFull&RL=0&EL=0&DL=0&NP=255&ID=&MF=CariLAWWPMSG.INI&MQ=&TI=0&DT=&ST=0&IR=24284&NR=0&NB=0&SV=0&SS=0&BG=&FG=&QS=&OEX=ISO-8859-1&OEH=utf-8http://carilaw.cavehill.uwi.edu/results.aspx?AC=SEE_ALSO&QF0=Court&QI0==%22High+Court%22&XC=/results.aspx&BU=http%3A%2F%2Fcarilaw.cavehill.uwi.edu%2FAdvSearch.aspx&TN=carilaw&SN=AUTO10186&SE=854&RN=0&MR=10&TR=0&TX=1000&ES=0&CS=0&XP=&RF=WebBrief&EF=&DF=WebFull&RL=0&EL=0&DL=0&NP=255&ID=&MF=CariLAWWPMSG.INI&MQ=&TI=0&DT=&ST=0&IR=24284&NR=0&NB=0&SV=0&SS=0&BG=&FG=&QS=&OEX=ISO-8859-1&OEH=utf-8http://carilaw.cavehill.uwi.edu/results.aspx?AC=SEE_ALSO&QF0=Country&QI0==%22Trinidad+and+Tobago%22&XC=/results.aspx&BU=http%3A%2F%2Fcarilaw.cavehill.uwi.edu%2FAdvSearch.aspx&TN=carilaw&SN=AUTO10186&SE=854&RN=0&MR=10&TR=0&TX=1000&ES=0&CS=0&XP=&RF=WebBrief&EF=&DF=WebFull&RL=0&EL=0&DL=0&NP=255&ID=&MF=CariLAWWPMSG.INI&MQ=&TI=0&DT=&ST=0&IR=24284&NR=0&NB=0&SV=0&SS=0&BG=&FG=&QS=&OEX=ISO-8859-1&OEH=utf-8


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compromised.

The defendant's, Russell Jack's attitude was quite similar to the landlady's. Now, he admitted that he and thetenant knew each other. It is not (end of page 2) likely therefore that the tenant could have mistaken him forsomeone else when the tenant said he saw him dismantling the roof of his apartment. He also stated that hiswife, the second defendant did not do the acts complained of. The second defendant did not give evidencebecause it was said that she had been ill and could not attend Court.

The tenant in his testimony stated that on two occasions his entrance to the premises was blocked so that hecould not get in to park his car. He also said that it was on 12th June that the roof of his apartment wasremoved by the third defendant. On 18th June, according to him both the outer and inner doors to hisapartment were removed by the third defendant. He stated too that the landlady had the water supply cut offand also the electricity and that on 26th June 1982 the landlady and the other two defendants removed hisfurniture from the apartment and put them outside where they remained in the rain for a few days when theywere taken away by someone. The tenant said that he re-entered the apartment and remained there with aplastic over his head for a roof and that subsequently he bought sheets of galvanize with which he had theroof repaired at a cost of some $2,000. The tenant also said that he had $8,150.00 in his apartment whichwas missing after the roof was removed and his belongings ransacked in the apartment.

Mr. Cordner who is a valuator and bailiff visited the apartment in June as has already been observed. Hevalued the items he saw there. He said they had been wetted by the rains. The value attached to the itemswas their value at the time he had examined them. Therefore the tenant will only be entitled to recover the

cost given by Mr. Cordner of those items taken from his apartment and missing subsequently.

The tenant testified that the relationship between himself and the landlady became strained after he refusedto pay the increased rent. The landlady said it was when the tenant refused to repay a loan she had made tohim. Whatever was the reason it is clear that the landlady wanted to get the tenant out of the apartment at anycost. I have come to the conclusion that this was the reason why the landlady assisted by her daughter andson-in-law did what the tenant said they did. All the acts committed by the second and third defendants in aneffort to dislodge the tenant were, I am driven to infer, instigated by the landlady. (end of page 3)

But a landlady cannot take the law into her hands. If she wanted the tenant out it was open to her to take suchsteps as the law allows to get him out. We have long gone past the era when might is right and self-help theorder of the day.

It goes without saying that I believe that it was the landlady and her relatives who had the roof and also thedoors of the tenant's apartment removed thus exposing the tenant and his property to the elements; I believethat in order to force the tenant out they also cut off the water and electricity to his apartment and put hisfurniture out in the open whence they were disposed of.

Now, the tenant alleged in paragraph 8 of his statement of claim that in April, May and June 1982, hisentrance to the premises was barred so that his car could not be driven in. I am not quite sure that the parkingof a car on premises of an apartment is an implied covenant for quiet enjoyment. I suppose it depends on thecircumstances. For example if the premises are rented with garage facilities, this will be so. But this is notsituation here. Be that as it may, if the complaint were that barriers had been placed across the entrance sothat the car could not get in, those barriers were placed on 7th June in the first place and they were removedon the day on which they were erected. Such an act if it were caught by the covenant would be barred by thestatute of limitation, the writ having been issued on 12th June, and because it would not have been acontinuing act. However, the blocking of the entrance on 9th June will not in my view be statute barredbecause in his evidence the tenant did not say that the barrier across the entrance which had been placedthere on that date was removed. The barrier would therefore have been a continuing breach, if breach it were.

In Chittv on Contracts - General Principles 23rd Edn. at para. 1589 the law in relation to the period oflimitation is stated as follows: "The general rule in contract is that the cause of action accrues, not when thedamage is suffered, but when the breach takes place." (end of page 4)

But paragraph 1590 of Chitty supra reads inter alia as follows:

"But if there are a number of breaches which do not discharge the contract, either because they are notsufficiently fundamental, or because the innocent party declines to accept them as having that effect, each will


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apartment. He said he had to pay some $2,000.00. He is therefore entitled to this sum only.

For loss of furniture, damages amount to $27,065 - $3,375.00, that is, $23,790.00 . Loss of cash amounts to$8,150.00. The cost of the galvanised sheets and other materials amount to $2,000.00. Special damagestherefore amount $33,940.00.

GENERAL DAMAGES:

There can be no exemplary or punitive damages merely for breach of the covenant for quiet enjoyment suchdamages only being awarded in certain cases of tort. Breach of covenant is a matter of contract. However inLavender v. Betts 1942 2 All E.R. 72 where the facts were that the landlord is order to get rid of the tenantremoved the doors and windows of the flat making it habitable only at great discomfort to the tenant. Atkinson,J. awarded the tenant exemplary damages.

At page 73 H the learned judge said: "The plaintiff says this was a trespass upon their tenancy and wrongfulinterference with their quiet enjoyment of the premises, and in my view, they have proved their case." (end ofpage 7)

In Perera v. Vandiyar 1953 3 All E.R. 1169 at page 1112 Romer, L.J. explained the decision to award punitivedamages in Lavender's case as follows:"The intention of the landlord in the present case was precisely thesame as the intention of the landlord in Lavender v. Betts but in that case the landlord resorted to trespass for

the purpose of getting his own way and so was guilty of a tort."

The landlady's attitude was clearly coloured by a burning desire to get rid of the tenant. She said it was onaccount of the fact that he did not honour his obligations under a loan agreement with her. He said it wasbecause he did not pay her the increased rent basing his refusal to do so under the Rent Restriction (DwellingHouses) Act 1981. As has been mentioned before the landlady whatever her reasons was motivated by thedesire to get the tenant out of the apartment. In the pleadings all the defendants admitted the attemptedincrease in rent. The landlady in her evidence denied that there was any increase in rent and testified that itwas the fact that the tenant did not repay the loan why she wanted him to leave. Now the landlady cannotblow hot and cold. Her evidence cuts right across the pleadings.

I am inclined to believe the tenant that there were attempts to increase the rent of his apartment and that itwas because he refused to pay the increased rent that the landlady pursued the course of getting him out. Ibelieve the tenant when he said that the landlady had said that the government could not tell her how to renther premises. She was prepared to take the risk of employing unlawful acts to get rid of the tenant becauseshe thought should and could receive a higher rent for the apartment. But parties cannot take the law intotheir hands. The landlady and the other defendants embarked on a most regrettable course.

In Broome v. Cassell & Company 1972 A.C. 1027 at page 1136 Lord Diplock said:

"I have no similar doubts about the retention of the second category. It too may be a blunt instrument toprevent unjust enrichment by unlawful acts. But to restrict the damages (end of page 8) recoverable to theactual gain made by the defendant if it exceeded the loss caused to the plaintiff, would leave a defendantcontemplating as unlawful act with the certainty that he had nothing to lose to balance against the change thatthe plaintiff might never sue him or, if he did, might fail in the hazards of litigation. It is only if there is aprospect that the damages may exceed the defendant's gain that the social purpose of this category isachieved - to teach a wrong doer that tort does not pay. To bring a case within this category it must be provedthat the defendant, at the time that he committed the tortious act, knew that it was unlawful or suspecting it to

be unlawful deliberately refrained from taking obvious steps which if taken, would have turned suspicion intocertainty. While, of course, it is not necessary to prove that the defendant made an arithmetical calculation ofthe pecuniary profit he would make from the tortious act and of the compensatory damages and costs towhich he would render himself liable, with appropriate discount for the chances that he might get away with itwithout being sued or might settle the action for some lower figure, it must be a reasonable inference from theevidence that he did direct his mind to the material advantages to be gained by committing the tort and cameto the conclusion that they were worth the risk of having to compensate the plaintiff if he should bring anaction."


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It is a reasonable inference from the evidence in my respectful view, that the landlady calculated the financialor material advantages to be gained by her taking the law into her hand to force the tenant out, and soachieve the goal of an increased rent.

The Court cannot allow such outrageous conduct to go without meting out to it the treatment it deserves. Ithink this is a case for exemplary damages against the landlady. I am satisfied that the third defendant actedon the authority of the landlady in removing the roof of the tenant's apartment and the doors of the tenant's

apartment.

General damages are awarded in the sum of $2,000.00.

And by way of exemplary damages, I award the plaintiff the sum of eight thousand dollars ($8,000.00) againstthe landlady, the first defendant. (end of page 9)

The special damages will bear at interest at the rate of 3% per annum from the date of issue of the grit to thedate of judgment.

The defendants must pay the plaintiff his costs of the action.

There will be a stay of six (6) weeks.

Dated this 29th day of June, 1989.

Ivol Blackman,

Judge

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