From the Courts
June 20, 2014
Lower Bay School Trustees win case against Rotary Club (Bequia)

The Incorporated Trustees of the Lower Bay School have won their case against the Rotary Club of Bequia.{{more}}

In a judgement handed down on June 6, 2014, Justice Gertel Thom said that the Trust is the legal owner of, and entitled to possession of a property at Lower Bay, Bequia, which had been at the centre of a battle since 2012.

Justice Thom also dismissed a counter-claim entered by the defendants Clayton Ollivierre, Sylvannus Peters and the Rotary Club and ordered that they pay the trustees costs in the sum of $7,000.

In 1997, the trustees signed a 99-year lease of $1 per year, which also stipulated how the property was to be used. However, although they occupied the building, the Rotary Club never signed the lease nor paid the money stipulated in the lease.

When the Rotary Club took possession of the property, the buildings were in a dilapidated state. The Rotary Club made substantial repairs to the main building, including changing the roof, tiling the floor and replacing the windows.

In March 2012, the Trustees told the Rotarians they were ending the 99-year agreement because the lease money had not been paid. One of the trustees, Marie Kingston, also told Searchlight that they wanted the Rotarians out because they were using the property “for their own self-interest,” and not for the benefit of the community.

The trustees had also signed a new lease with Paradise Primary, a private, not-for-profit school.

The Rotarians, who told SEARCHLIGHT they used the property to host weddings and for skills training programmes, refused to vacate the property.

The Trust instituted court action seeking a declaration that it is the legal and rightful owner of the property and entitled to immediate possession of the property.

The Defendants filed a counter-claim in which they sought a declaration that the purported lease dated September 30, 1997 was null and void and of no effect in law and also a declaration that the Trust’s title to the property is extinguished by virtue of the provisions of the Limitation Act.

Marie Kingston and Berton King, two trustees of the Trust and Alvin James, a former member of the Rotary Club, testified on behalf of the Trust. Clayton Ollivierre, Sylvester Simmons and Sylvannus Peters testified for the Defendants.

The Trustees were represented by P.R. Campbell QC, Louise Mitchell-Joseph and Kezi Francis. Richard Williams was counsel for Clayton Ollivierre, while Grahame Bollers represented Sylvannus Peters.

Campbell QC submitted that the Rotary Club, being an unincorporated body of persons, lacks the legal capacity to acquire and hold land like a natural person. Campbell also submitted that since the club could not own property, it could not sustain a defence or counter-claim on the doctrine of adverse possession under the Limitation Act.

The Trustees also submitted that when the keys were handed over by the Trust to one of the Rotarians, that could only be regarded as a voluntary or permissive handing over of possession of the property – a tenancy at will was created.

Bollers and Williams submitted in response that the Defendants were not tenants at will, but rather a tenancy from year to year was created.

The judge in her findings said she did not believe the testimony of Clayton Ollivierre and Sylvannus Peters that they have been in exclusive possession of the property for the past 15 years.

“The undisputed evidence is that the Rotary Club is managed by the Board. Members of the Board held negotiations and were handed the keys. Neither Mr Clayton Ollivierre and Mr Sylvannus Peters participated in the negotiations or received the keys. Indeed Mr Sylvannus Peters joined the Rotary Club in 1999 after the negotiations and keys were handed over. Further it is common ground that the property was used by the members of the Rotary Club for their meetings and they held their community programmes at the property. The property was repaired with funds raised by the members of the Rotary Club and from donations from Rotary Clubs overseas. I accept the testimony of Mr James that the property was under the control of the Board of the Rotary Club which was elected annually.”

The judge also said in her judgement that “For a tenancy from year to year to have been established in favour of the Defendants, it was necessary for them to show that either they paid the rent, or that they expressly agreed to pay the rent, or any part of the annual rent. It is common ground that the Defendants did not pay rent. There is no evidence from the Defendants that they expressly agreed to pay the rent or any part of the rent reserved….

“The Defendants having occupied the property as tenants at will, the right to recover possession did not accrue and time did not begin to run until the tenancy at will was terminated. I agree with the submission on behalf of the Trustees that the tenancy at will was not determined until in 2012 when the Claimant sought to regain possession first by correspondence and then by forcibly changing the locks on the property. The right of the Trustees to recover possession of the property is therefore not extinguished by virtue of the Limitation Act.

“In conclusion, I find that the Defendants were tenants at will and that the tenancy was terminated by the Trust who is the legal owners of the property….” Justice Thom ruled.