Stacey-Ann Kelly and Owen Powis v Dr Victor Lookloy - Judgment

¶ ```markdown # IN CHAMBERS ## IN THE GRAND COURT OF THE CAYMAN ISLANDS ### CAUSE NO: 11 OF 2005 #### BETWEEN:

¶ [1] (1) STACEY-ANN KELLY

¶ [2] (2) OWEN POWIS Plaintiffs AND:

¶ [3] DR. VICTOR LOOKLOY Defendant BEFORE: THE HON. MADAM JUSTICE LEVERS APPEARANCES:

¶ [4] Counsels for Plaintiffs: S. Hall-Jones of Associate Advocates Chambers

¶ [5] Counsel for Defendant: Ms. E. Nervik of Nervik & Co. Heard: January 27-28, 2005 ## JUDGMENT Levers J.

¶ [25] By Ex-parte application it is led on the way of the original motion in the 13th January 2005. The Plaintiffs Stacey-Ann Kelly and Owen Powis ask for the following relief:

¶ [1] A Declaration that the Second Plaintiff on or after the 1st October 2004 continued to occupy premises situate at and known as Apartment #2, 83A, Orange Drive, Prospect, Grand Cayman, Cayman Islands (hereinafter the "Leased Premises") with the consent of the lessor after the termination of the lease for a fixed term of one year (hereafter the "Lease") of the Leased Premises made between the Second Plaintiff and the Defendant (as lessor) on the 1st October 2003 on a periodic tenancy of twelve months duration expiring on the 30th September 2005;

¶ [2] A Declaration that the First Plaintiff entered into occupation of the Leased Premises as a lessee on or about the 1st October 2003 pursuant to an implied tenancy alternatively a tenancy by estoppel for the same term and upon the same conditions as the Lease (hereinafter the "First Plaintiff's Lease");

¶ [3] A Declaration that the Second Plaintiff on or after the 1st October 2004 continued to occupy the Leased Premises with the consent of the lessor after the termination of the First Plaintiff's Lease on a periodic tenancy of twelve months duration expiring on the 30th September 2005; In the alternative, a Declaration that the Second Plaintiff on or after the 1st October 2004 continued to occupy the Leased Premises with the consent of the lessor after the termination of the First Plaintiff's Lease on a periodic tenancy of twelve months duration expiring on the 30th September 2005, pursuant to the periodic tenancy conferred by section 45(2) of the Registered Land Law (2004 Revision);

¶ [5] A Declaration that in respect of the Lease and in respect of the First Plaintiff's Lease the Notice of Termination purported to have been served by the Defendant on the Plaintiffs and each of them and dated the 17th December 2004 (the "Purported Termination Notice") was null, void and of no effect in respect of both and/or either of the Plaintiffs' said tenancies;

¶ [6] In the alternative a Declaration that the Purported Termination Notice in so far as it sought to terminate the periodic tenancy declared to have been created as described in paragraph 4 hereof was null, void and no effect;

¶ [7] A Declaration that in any and every event the Purported Termination Notice was null, void and of no effect;

¶ [8] An injunction restraining the Defendant whether by himself or by his servants or agents or howsoever otherwise from the unlawfully and in breach of contract terminating the said Lease and the First Plaintiff's Lease whether on the 17th January 2005 or on any other day prior to the termination of the said term as Declared by Order of the Court by efflux of time;

¶ [9] An injunction restraining the Defendant whether by his servants, agents or howsoever otherwise from entering upon the said Premises, or from otherwise interfering with the Plaintiffs' possession of the said Premises, until the said expiry of the said Lease and the First Plaintiff's Lease;

¶ [1] That the Defendant's Cross Summons dated the 19th January 2005 be dismissed;

¶ [2] That the Plaintiffs do have the costs of the Originating Summons and the Cross Summons to be taxed on a full indemnity basis if not agreed. The application was Ex-parte and an injunction was granted for a period of 14 days. Within that time, the Defendant, Dr. Lookloy took out a cross Summons asking for the following relief:

¶ [1] That the Ex-parte Originating Summons dated 13th January 2005 be dismissed;

¶ [2] That the Ex-parte Order made on the 14th January 2005 be discharged;

¶ [3] That an Order of Possession be granted;

¶ [4] That the tenant, namely Owen Powis and any other person occupying the apartment, in breach of the agreement, including Ms. Kelly vacate the premises within 48 days of the date of the Order;

¶ [5] The Plaintiff is ordered to pay the Defendant's costs; and

¶ [6] Such further and/or other relief as this Honourable Court deems fit. 4 Mrs. Nervik on behalf of the Defendant has already 5 conceded that possession cannot be granted in the 6 manner requested under the cross summons. THE FACTUAL BACKGROUND 10 The proprietor of these premises more particularly 11 described as Apartment #2 located at Block 25B, 12 Parcel 436, situated at Orange Drive, Prospect, 13 Grand Cayman, is the Defendant. He alleges that a 14 Real Estate Agent (Mrs. Anderson) acting on his 15 behalf listed the apartment for rental and that 16 the tenants dealt with Mrs. Anderson. The tenant 17 Mr. Owen Powis signed a Lease Agreement. The 18 tenant with the agent a Lease Agreement by the 19 tenant with the agent a Lease Agreement by the 20 could complete the rental agreement with Mr. Powis ``` This text is a legal document detailing the factual background of a case involving a landlord and tenant dispute. The landlord, represented by Mrs. Nervik, has conceded that possession cannot be granted in the manner requested under the cross summons. The document outlines the property in question, which is Apartment #2 located at Block 25B, Parcel 436, situated at Orange Drive, Prospect, Grand Cayman. The landlord alleges that a real estate agent, Mrs. Anderson, listed the apartment for rental and that the tenants dealt with her. Mr. Owen Powis signed a Lease Agreement, and the tenant could complete the rental agreement with Mr. Powis.
1 and have him sign the lease. He denies that he 2 has any lease, verbal or written with Miss Kelly, 3 the Second Plaintiff in this matter. According to 4 Dr. Lookloy, sometime after the property was 5 leased he became aware of the fact that there was 6 a second party residing in the premises. He 7 stated that he assumed there was some kind of 8 personal relationship between Powis and Kelly, but 9 that he clearly remembered telling Mr. Powis that 10 he rented him the place and the only person that 11 he was prepared to deal with was him. 13 The rental payments were deposited to the Bank of 14 Butterfield in the Defendant’s account and it was 15 highly unlikely that the Defendant would have 16 known of any internal agreement between Miss Kelly 17 andwis. ase A 19 6
The Lease contained the usual covenants to pay the reserved rent and to permit the landlord and/or his agents with or without workman and others at reasonable times to enter upon and examine the conditions of the demised premises and most importantly, not to assign underlet or part with the possession of the demised premises or any part thereof without the written consent of the landlord, (the granting of which consent being in the absolute discretion of the landlord). The Lease was for 12 months and the 12 month period expired on the 1st October 2004. At that time the rent was in arrears but no notice was served by the Defendant on the Plaintiffs and it is submitted on behalf of the Plaintiff's that Clause 4 of the lease came into effect. That Clause reads: "That if the Tenant shall be with the consent of the Landlord

¶ [1] remain in occupation of the

¶ [2] demised premises after the

¶ [3] expiration of the term hereby

¶ [4] granted the Tenant shall unless

¶ [5] it should have been mutually

¶ [6] agreed in writing to the contrary

¶ [7] be deemed to hold the same upon

¶ [8] the covenants conditions and

¶ [9] provisions as are herein

¶ [10] contained. In witness whereof the

¶ [11] Landlord and Tenants have hereto

¶ [12] set their hands and affixed their

¶ [13] seals the day and year

¶ [14] hereinbefore written.'

¶ [16] It is perhaps useful at this stage to look at the

¶ [17] Plaintiff's allegations. It cannot be denied that

¶ [18] Mr. Owen Powis is the lessee. He alone signed the

¶ [19] lease. Mr. Hall-Jones on behalf of the First

¶ [20] Plaintiff, Stacey-Ann Kelly submits that at all

¶ [21] times Dr. Lookloy knew that she was an occupant

¶ [22] and a tenant and that the facts give rise to an

¶ [23] implied tenancy by virtue of his acceptance of her

¶ [24] occupation. ``` This text is a legal document discussing the terms of a lease and the parties involved, including the landlord, tenant, and the plaintiff's allegations regarding the occupancy and implied tenancy.

¶ [1] Miss Stacey-Ann Kelly alleges that she went to see

¶ [2] the premises with Mr. Powis and that although he

¶ [3] alone signed the Lease, it was clear that two

¶ [4] persons were going to occupy the premises. Her

¶ [5] allegation is supported by the application form

¶ [6] filled out by the First Plaintiff in which it is

¶ [7] stated that two persons were going to occupy the

¶ [8] premises. Dr. Lookloy in his affidavit denies

¶ [9] that he had any dealings with Miss Kelly as a

¶ [10] tenant. However, he concedes that he discussed

¶ [11] rental with her, he concedes that he discussed

¶ [12] arrears with her and he concedes that she called

¶ [13] him on several occasions and he called her back on

¶ [14] her cell phone about the rent of the apartment and

¶ [15] other related matters.

¶ [16] Mr. Powis was called to give evidence and he filed an affidavit in which he stated that he was a passive observer in this
1 matter and that Miss Stacey-Ann Kelly was the one 2 who did all the negotiations and that Dr. Lookloy 3 knew from the inception that Miss Stacey-Ann Kelly 4 was in occupation of the premises. Indeed, Dr. 5 Lookloy's own affidavit states: 6 7 "I clearly remember telling Mr. 8 Powis that I rented the place to 9 him and the only person I was 10 prepared to deal with was him 11 because he was the person to whom 12 I lease the premises." 13 14 There is no evidence of Dr. Lookloy objecting to 15 her occupation; the only evidence is that he 16 preferred to deal with Mr. Powis over rental 17 matters and other related matters pertaining to 18 the tenancy. 19 20 Theion the is, 21 impenant? ndispi kell 22 questirefore ... ut MiY is th 23 lied teThe us denceat 24 Thean the is, 25 Miss Kelly viewed the premises together with Mr.

¶ [1] Powis and that both persons were to occupy the

¶ [2] premises from the inception and that Miss Kelly

¶ [3] did occupy the premises from the start of the

¶ [4] tenancy. The manner of payment of rent is not

¶ [5] always essential, although, that is perhaps the

¶ [6] clearest proof. Miss Kelly alleges that she paid

¶ [7] the rent and DR. Lookloy agrees that he discussed

¶ [8] rental matters with her. 9.

¶ [10] **Was Stacey-Ann Kelly an implied tenant?** 11.

¶ [12] The law is helpful in the manner in which the

¶ [13] Court should address the matter. Instructive in

¶ [14] this regard, is section 55 (3) (b) of the Registry

¶ [15] Land Law and I quote: 16.

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¶ [319] 'The les or 32
The Defendant in this case alleges that Miss Stacey-Ann Kelly's occupation was in breach of the terms of the lease, however, tacitly, he accepted her occupation, he discussed matters of rent with her and he did nothing to terminate the lease due to what he calls 'the breach'. I therefore hold that Stacey-Ann Kelly had an implied tenancy and that Dr. Lookloy is estopped from denying the tenancy. Both his conduct and his acceptance of her occupation is a clear indication of the fact that he knew that she was in occupation with Mr. Powis and did nothing to terminate the tenancy on those grounds. As I have held that she is an implied tenant, is she now entitled to the protection of the law?
Submissions on behalf of the two Plaintiffs Mr. Hall-Jones on behalf of the Plaintiffs submits that Section 51 (2) of the Registered Land Law (2004 Revision) is applicable. Section 51 (1) reads: ``` 'Where a person, having lawfully entered into occupation of any land as lessee, continues to occupy that land with the consent of the lessor after the termination of the lease he shall, in the absence of any evidence to the contrary, be deemed to be a tenant holding the land on a periodic tenancy on the same conditions as those of the lease so far as those conditions are appropriate to a periodic tenancy. ``` (2) For the purposes of this section, the acceptance of rent in respect of any period after the term of the lease shall be deemed to be an indication of consent to an agreement to the contrary, be taken as evidence of consent to ```
```markdown In this case, the Lease expired by effluxion of time in October 2004. Mr. Powis must therefore, be a holding over tenant even if Miss Stacey-Ann Kelly was not to be considered an implied tenant. However, as I have already held that she was a tenant, both parties were holding over as of October 2004. Rent was paid in November 2004, in the sum of two thousand and odd dollars and was accepted. This can be taken as evidence of consent to continued occupation of the land at that time. No notice of termination had been served. A notice was served in December by way of letter which was not a notice as designated under the law. The Defendant now comes with allegations of breach of contract by specifically addressed in the letter. ``` This text is a transcription of the content visible in the image, maintaining the original structure and phrasing.

¶ [1] (notice) written by him, demanding the premises

¶ [2] back within 30 days.

¶ [3] Section 51 (1) of the Registered Land Law provides

¶ [4] that with the consent of the lessor after the

¶ [5] termination of the lease, the tenant shall in the

¶ [6] absence of any evidence to the contrary (and there

¶ [7] is no evidence in this case to the contrary) be

¶ [8] deemed to be a tenant holding the land on a

¶ [9] periodic tenancy on the same conditions as to

¶ [10] those of the lease so far as those conditions are

¶ [11] appropriate to a periodic tenancy. Periodic

¶ [12] Tenancy is defined under the Land law. It means a

¶ [13] tenancy from year to year, half year to half year,

¶ [14] quarter-to-quarter, month-to-month, week to week

¶ [15] of the like. Mr. Hall-Jones submits that it

¶ [16] not being otherwise, this He is that a year

¶ [17] can any other thing. He submits that the lease he left is

¶ [18] for 12 months and therefore the periodic tenancy (holding

¶ [1] over) must be for 12 months. Mrs. Nervik on the

¶ [2] other hand submits that as the rental is being

¶ [3] paid or has been defined to be paid on monthly

¶ [4] basis, the assumption of the periodic tenancy of a

¶ [5] year to year is rebutted and the tenancy becomes a

¶ [6] month to month tenancy. Mrs. Nervik relies on the

¶ [7] case of Adler v Blackman at page 14 [1952] All

¶ [8] E.R. V2. In that case, the rental was specified

¶ [9] to be paid weekly. The court held that the

¶ [10] presumption that at the end of the tenancy for a

¶ [11] year the tenant had held over on a yearly tenancy

¶ [12] was rebutted by the fact that the rent specified

¶ [13] in the lease for a year was quoted at $3 per week

¶ [14] and was not calculated by reference to a yearly

¶ [15] sum. It was further held that the conduct of the

¶ [16] parties in serving and accepting a notice to quit

¶ [17] was based on the presumption that the tenancy was

¶ [18] for a year.
The tenancy was, therefore, held to be a weekly one and the notice to quit was valid. Mrs. Nervik relies on the case and submits that in this case, the holding over period is a month-to-month tenancy as the lease specified the rental on a monthly basis. In this case, however, there is no conduct of the parties which can rebut the yearly tenancy, there being no acceptance of the notice to quit given on the basis that the tenancy was a weekly one or a monthly one and the only rebutting evidence that there is, is that the rental was quoted on a monthly basis. Acceptance of rent is not a prerequisite to consent. Consent to holding over is inferred by conduct and/or by a written agreement. The acceptance of rent is only a matter of the lease, The document continues with further discussion on the matter of the lease, but the text is cut off at this point.

¶ [1] If the tenant shall with the

¶ [2] consent of the landlord remain in

¶ [3] occupation of the demised

¶ [4] premises after the expiration of

¶ [5] the term hereby granted, the

¶ [6] tenant shall unless it shall have

¶ [7] been mutually agreed in writing

¶ [8] to the contrary be deemed to hold

¶ [9] the same upon the covenants,

¶ [10] conditions and provisions as are

¶ [11] herein contained.'

¶ [13] Mr. Hall-Jones submits usually leases define

¶ [14] holding over period as on a month to month basis.

¶ [15] Indeed, at common law, the tenant would become a

¶ [16] month-to-month tenant. The Law provides that:

¶ [18] 'He shall in the absence of any

¶ [19] evidence to the contrary be

¶ [20] deemed to be a tenant holding the

¶ [21] land on a periodic tenancy on the

¶ [22] same conditions as those of the

¶ [23] lease so far as those conditions

¶ [24] are appropriate to a periodic

¶ [25] tenancy.'

¶ [26] (already

¶ [27] 9 0-year, monthsx t a

¶ [28] 2 pe tenan ted t. year

¶ [29] 2 to six ma mean-

¶ [30] It is a acce

¶ [31] 8 eriodiccy ca a si

¶ [32] months, a three months to three

¶ [33] months.)

¶ [1] Mrs. Nervik submits that whatever the law may say,

¶ [2] the word term (that is the duration of the lease)

¶ [3] cannot mean the same as the conditions of the

¶ [4] lease. That the word conditions in the law

¶ [5] applies only to the covenants and the word

¶ [6] "condition" is an exclusive term and cannot

¶ [7] incorporate the words "term or duration" of the

¶ [8] lease. She says that when the lease states, "to

¶ [9] hold the same upon the covenants, conditions and

¶ [10] provisions as are herein contained", that does not

¶ [11] include the duration of the lease. However, she

¶ [12] does not explain why the word covenant is used as

¶ [13] distinct from condition and provisions. 14.

¶ [15] Dr. Lookloy's complaints as to the alleged

¶ [16] breaches of covenants are:

¶ [1] That ntal was paid

¶ [2] frequently, frequentlly. He

¶ [3] is estopped from alleging that breach as he

¶ [1] accepted the rent in November 2004, which

¶ [2] brought the rent up to date, save and except

¶ [3] for $358;

¶ [2] He complains that he was not allowed to view

¶ [3] the premises as he did not have a key. Section 2 of page 1 of the Lease Agreement

¶ [6] states, "to permit the landlord and or his

¶ [7] agents with or without workman". By

¶ [8] implication that means that the landlord

¶ [9] should have asked for permission and there is

¶ [10] no such evidence that permission was asked

¶ [11] for and refused;

¶ [3] Under the terms of the lease or by effluxion

¶ [4] of time if the tenancy was to be determined

¶ [5] sixty days notice was required. That was not

¶ [6] given by the landlord. He is therefore,

¶ [7] estopom compo

¶ [8] 8 materia is inheese

¶ [9] 1 The ml time t.

¶ [10] r 2004 reach

¶ [11] oped frplain'

¶ [19] Nervik relies on subsection 2 of paragraphs 4
```html 1 and states that the landlord shall be under 2 no liability to rebuild the demised premises 3 and either party shall have the right to 4 terminate the tenancy by giving the other 5 seven days notice in writing of such 6 intention. This of course cannot be read on 7 its own, it must be read in the context of 8 the entirety of the paragraph, which deals 9 with the destruction of the premises. Mrs. 10 Nervik asks for the right forfeiture. Under 11 section 55 (3) (b), Dr. Lookloy has waived the 12 right of forfeiture. Acceptance of rent and 13 the fact that Dr. Lookloy should have by 14 reasonable diligence become aware of the 15 commission of the breaches estopps him from 16 relying on these breaches. Having held that 17 he isped from 18 are the sequence the estoppel relating to 19 period of one year? Where in a tenancy ```
```html 1 agreement for 1 year, the rent is expressed 2 to be so much per week and the tenants rolls 3 over paying the same weekly rent only a 4 weekly tenancy should be assumed. Both 5 parties must be taken to have consented to a 6 continuance of the tenancy after the 7 expiration of the lease, and, that being so, 8 the implication was, in the absence of any 9 evidence to rebut it, that there was a 10 tenancy from year to year on the terms of the 11 former lease so far as not inconsistent with 12 such tenancy. The question is the real 13 intention of both parties. It may well be 14 that this Court would have held that the 15 rental payable in the lease being expressed 16 on a monthly basis, the holding over periodic 17 tenancy would have been on a monthly basis. 18 There is no evidence if this 19 case, there is a written document which talks ```
```markdown of "covenants, conditions and provisions as are herein contained." Even if I was to hold that covenant and conditions are distinct from the duration of the term of the lease, what does the incorporation of the word "provisions" mean? I can only hold that in the absence of a proper notice being given at the termination of the first year's lease, that the word provisions in the lease, which must include the duration make the holding over periodic tenancy a year to year tenancy. I therefore hold that the Defendant has not rebuted the presumption of a yearly tenancy and that the Plaintiffs have the right to the protection of law. The Defendant must now, if he wishes to repossess the premises, take action in the 8 Law (1 visiove Regi n) of trst am w 1 Land 995 Reve n if ro n with term Evl...wrong that it is not a yearly tenancy, the notice ``` This text is a legal argument discussing the interpretation of a lease, specifically the distinction between covenants, conditions, and provisions, and the implications of the word "provisions" in the context of a lease's duration. The argument concludes that the lease is presumed to be a yearly tenancy unless the Defendant can provide a proper notice at the end of the first year's lease.
```html 1 not complying with section 45 of the 2 Registered Land Laws (1995 Revision) is void. 3 4 Dated this 14th day of February 2005. 5 6 7 8 Judge of the Grand Court