Shorey, Lewis and Lewis v Roettgen
| Jurisdiction | Barbados |
| Judge | Richards, J. |
| Judgment Date | 01 July 2013 |
| Neutral Citation | BB 2013 HC 38 |
| Docket Number | 1557 of 2009 |
| Court | High Court (Barbados) |
| Date | 01 July 2013 |
High Court
Richards, J.
1557 of 2009
Mr. Stephen Alleyne, Attorney-at-Law for the claimants.
Mr. Errol Niles, Attorney-at-Law for the defendant.
Real Property - Ownership — Beneficial interest — Whether defendant held property on trust for claimants.
This case is about the beneficial interest in the property “Three Tops”, situated at Thorpes Gardens, Holders Hill, St. James in this island. Sadly, the dispute has led to a seriously fractured family relationship. The parties are a mother and her three daughters. The first claimant is the mother of the second and third claimants and the defendant. All the claimants reside in England, and the defendant resides in the United States of America.
On 23 December, 1983, the defendant entered into an agreement to purchase the property. The Agreement for Sale was not produced in this Court, but it is referred to at Clause 1 of a Notice to Complete dated 02 May, 1984, and sent to the defendant by the vendor Leslie Bernard Fairall. The Notice also mentions the payment of a deposit of $15,000, and a sum of $165,000 as the balance of the purchase price.
The Conveyance was executed on 17 July 1984, and signed by Hallam Fields on behalf of the defendant as purchaser, by the authority of a power of attorney. The following day, the defendant mortgaged the property to the Barbados National Bank (BNB) for $160,000, again with Mr. Fields acting on her behalf. The monthly mortgage payment was $1,651.60 over twenty years, at an annual interest rate of eleven percent.
It is assumed that the vendor received a further $5,000 by way of an increased deposit. This would support the defendant's evidence that the deposit was $20,000. There is also a concomitant reduction in the purchase price by $5,000, to $160,000. In February 2012, A.N. Kirton Inc. valued the property at $789,000. And by July of that same year, Glenvis Bradshaw provided a valuation of $1,800,000.
The claimants filed a Writ of Summons dated 05 August, 2009, claiming the following:
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(1) A declaration that the defendant holds the property on trust for the claimants and herself in equal shares or in such shares as the Court determines.
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(2) A declaration that the claimants are equitable tenants in common of the said property.
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(3) A declaration that the claimants are entitled to their respective shares in the proceeds of sale in the event that the property is sold but subject to the costs of such sale.
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(4) Further or other relief.
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(5) Costs.
The evidence of the first claimant, Elsie Shorey, was given by way of a Witness Statement, supplemented by her oral testimony. She alleged that the claimants and the defendant had a conversation in London, during which it was agreed that they would purchase a property in Barbados for the family. The property would be used as a holiday home. According to Ms. Shorey, the defendant said that the property would be especially for the second and third claimants and the defendant, each of whom had no husband. Ms. Shorey said that the purchase of the property was also discussed in Barbados in April 1984, when the parties were here for her mother's funeral.
Sometime in 1984, the defendant is supposed to have called Ms. Shorey in London, and informed her that she had seen a property in Barbados, “Tree Tops” at a price of BDS $180,000. Ms. Shorey was told that the property had seven bedrooms, and could serve the family when they came to Barbados on holiday. The defendant also said that she would pay down BDS $20,000, and borrow BDS $160,000 from the bank.
Ms. Shorey told the Court that after the conversation with the defendant, the defendant paid the deposit and put her name on the mortgage document. It is Ms. Shorey's evidence that all the claimants promised to help the defendant repay the mortgage loan. To quote Ms. Shorey:
“We had an account set up at the [BNB] to facilitate the payment of the mortgage. In addition, from 1984 the three of us would send money to Barbados mostly by International Money Order and Western Union transfer to help pay the mortgage which was $1,651.60 per month. I still have many of the receipts in my possession to show.”.
(para. 7 Witness Statement).
Ms. Shorey said that in addition to contributing to the mortgage payments, on a number of occasions she sent lump sums to Barbados to pay off arrears on the mortgage. On 18 August, 2003, she paid off the remaining balance on the mortgage. Ms. Shorey also spoke of financial contributions towards the maintenance of the property, and the payment of land tax, insurance and other bills.
Ms. Shorey further alleged that after the mortgage was paid off, the defendant began asking about the rental of the property. In her Witness Statement she described how:
“Lolita began telling me that I want my place rent out, I was tired of you people.” She then got annoyed with me after I told her the place could be rented out but she needed to keep six weeks free every year open for the family. She had the audacity to ask me why I had to stay in the house, and I told her that I had paid all the bills plus it was just six weeks out of 52 in the year.”. (para. 20).
Ms. Shorey told the Court that–
“The plan was for the family to stay at the property when they came. It would be unfair to pay bills and mortgage and then stay at a hotel. I only want to stay there 6 weeks … While we are here the 2 bedroom flat could be rented. While we are here the two 3 bedroom flats are not available for rental.”.
The second claimant, Elmo Lewis, has lived in one of the flats at the disputed property since 1999. She also gave evidence about an agreement made between the parties in 1984 to purchase a family home in Barbados. She said that the defendant located the property, and with the permission of the claimants the defendant paid the deposit and sourced a mortgage. And the claimants made it “absolutely clear” to the defendant that they would remit money to Barbados to pay the mortgage. (See para. 5 of Witness Statement).
Elmo Lewis testified that her mother wanted the property for the three girls who had no husband. Elmo was aware that only the defendant's name appeared on the Conveyance, and she expressed her concerns to her mother about this. She said that her mother took no action because her mother trusted the defendant. Elmo never voiced her concerns to the defendant, or asked the defendant to place her name on the Conveyance.
Elmo said that between 1993 and 1995, she participated in the foster care programme administered by the British Government. She earned about £1400 monthly. Her oral testimony indicated that it was at this time that she began contributing to the mortgage. She explained that:
“My mother started paying long before me. [The third claimant] also contributed. We gave our mother our contribution … we put money together and paid the mortgage.”
Elmo alleged that around 1996 or 1997, she borrowed £6,000 from Lloyds Bank to add balconies to the property. She said that both the defendant and their sister, (the third claimant), also contributed to the maintenance of the property. Elmo is supposed to have moved to the property in 1999 at the invitation of the defendant. She testified that the defendant asked her to come to Barbados to look after the property because it was beginning to deteriorate. Subsequent to the full repayment of the mortgage, the defendant wanted Elmo to pay rent, but this was resisted.
A Witness Statement was filed on behalf of Erlene Lewis, the third claimant. However, the case for the claimants was closed after the oral evidence of the first and second claimants. Erlene gave no evidence at the trial. Therefore, only limited reference will be made to her in this judgment, in so far as the other claimants and the defendant referred to her role in relation to the property.
Mrs. Lolita Roettgen filed her Defence on 02 December, 2009. In it she denied any agreement between the parties for the purchase of the property. She said that the claimants were unaware of her intention to purchase the property, until after she had signed the Agreement for Sale and paid the deposit. The defendant acknowledged that her mother (the first claimant) and a brother, Roosevelt Lewis, made financial contributions to the mortgage payments. However, she denied that her two sisters, (the second and third claimants), ever made any mortgage payments.
The defendant accepted that the third claimant, Erlene Lewis, carried out repairs to one of the apartments at the property. But she said that this was done without her knowledge or approval while Erlene was vacationing at the property. In relation to Elmo Lewis (the second claimant) the defendant contends that she is a mere licencee at the property, who has ignored a request by the defendant that she should pay rent. The defendant believes that the claimants have neither a beneficial interest in, nor an equitable title over the property. In her oral evidence the defendant did not agree that her mother has a share in the property. However, she admitted in the Defence filed on her behalf, the possibility that her mother “only may possess a substantially minor equitable title over or share and/or interest” in the property. (See para. 7 of the Defence).
Roosevelt Lewis gave evidence for the Defence. Any suggestion that he contributed either to the payment of the mortgage, or to the maintenance of the property, is disputed by the claimants. However, Mr. Lewis clearly stated in his evidence to this Court that he was not making a claim against the property. Therefore, it is unnecessary for the Court to make any finding of fact about any interest that Mr. Lewis may have in the property.
Mr....
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