Irresponsible Attorneys and Recalcitrant Landlords(Agents)

Submitted by Cherfleur

Social Justice Network & Clinic

In the High Court of Judicature

CV871 of 2019

After 10 years the Prospers were brought before the High courts on a Claim for compensation for items removed and damaged, damages for trespass, duress, loss of income and a declaration of the contents of the garage bags and other items allegedly dumped from the dwellings.

In response they applied for a strike out they claimed:

  1. they were Agents working on behalf of the owner
  2. the same matter was tried before the Magistrate’s Courts (res judicata)
  3. the claim is Statute barred

Yesterday Monday August 10 during Oral Submissions the first two claims were withdrawn. It was argued on their behalf re #3 that the cause of action occurred in 2009 and therefore was way over the limitation of actions bar.

YOU DON’T KNOW WHAT YOU DO NOT KNOW

The claimant claimed that there was an agreement between the Prospers the Police to return the items taken to their home and compensate for those damaged and allegedly dumped and since none or any of the agreement was upheld, limitations does not apply.

The Defence then claimed that the particulars to the above were not properly pleaded.

The Claimant claimed it was sufficiently so as per Affidavit/Statement of Case. Matter adjourned for Decision.

It is staggering to discover that many Attorneys in Barbados learned that civil cases are to begin with Claim Form and Statement of Case, as per CPR, and it seems that they forget all about the other parts that make up the Statement of Case, time and time again. In Hannigan v Hannigan [2000] All ER (D)693 at appeal the Lord Justice Denning said that:

  1. The new rules should be construed widely and generously to give effect to its manifest intentions: “I think that any application to the court, however informal, is a ‘proceeding’’. There were ‘proceedings’ in being at the very moment that the plaintiff made his affidavit and his solicitor lodged it with the court.”+

  2. He further quoted Bowen LJ in 1887 who was quoted by Holroyd Pearce LJ in Pontin v Wood (1962) 1: “It may be asserted without fear of contradiction that it is not possible in the year 1885 for an honest litigant in her Majesty’s Supreme Court to be defeated by any mere technicality, any slip, any mistake step, in his litigation.”

  3. “Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgement or order therein.”

Now, I really don’t know what all this means. You tell me.

There are two despicable practices operating here.

The prevalence of Landlords breaching Tenants’ rights to peaceful enjoyment.

Reckless Attorneys advising clients/Landlords or Agents to change locks or other.

These are contemptible acts and when it passes the wrong person/Tenant this is what happens.

This scourge must stop. Tenants are humans. Tenants’ children’s lives matter.

The Claimant claim is that sometime between January and April 2009 Linda and James Prosper of Diamond Valley, St Philip entered into a premises at West Terrace allegedly acting on instructions from the Landlord Reba Euline and Mr Harcourt Gill of Smith & Smith and removed various personal items belonging to the occupants of the house.

When the matter was reported to the Holetown Police Station the Prospers claimed they were instructed to change lock and throw out items and repossess property because the neighbours told them that the Claimants migrated overseas..

Upon questioning it was found that there was no eviction order. The Claimant reported that the items removed ought not to have been dumped because they were unique, collector’s items, electronics, antiques, paintings and very valuable. Among them a common GE Cordless phone and GE Digital Answering Machine. Estimated value is thousands of dollars. Threatened with conviction Mr Prosper gingerly volunteered to compensate for the initial items reported missing. The interviewing Officer after careful analysis of the Claimants complaint (that if the purpose was to repossess the premises then all of the items, including furnishings would also have been dumped.but instead they remained in the house) warned the Prospers that they should return any items they knew they had removed to their house and compensate the Claimant or be charged for a crime. The parties agreed to this and to keep the peace.

The Prospers had left their wet and dry vacuum at the premises and returned for it. The Claimant told them they won’t get it until they returned her items. The Prospers returned another time in the absence of the Claimant, entered again without an Order, removed their vacuum, dismantled and gathered various items from around the dwelling and dumped them together in the living area. Another report was made to the Holetown Police Station but the Officer on duty remarked that the people want their house and you should leave and pursue legal action.

The Claimant vacated the premises in October 2009. During packing many more items from cupboards and books from shelves were discovered missing totalling tens of thousands of dollars. The Claimant on vacating advised the Prospers of so doing and asked when they intended to return and compensate the Claimants. They gave no specific time. Complaints and requests for criminal charges to be laid against the Prospers to Stn Sgt Woodroof one of the Officers in April received the response: ‘the people said they would compensate you, just wait. Insisting on the immediate return of the missing Paintings he said ‘the people didn’t steal them, they took them for safe keeping”. Letters sent by Attorney requesting the return and compensation went unanswered. Letters and visits by Bailiff too went unanswered. The matter was placed before the St Matthias court civil division in 2015 but was referred to the High Court.

A Statement from the Holetown Police was requested of the Commissioner of Police for this course of action. The Commissioners’ Office indicated that since there was an agreement with the Police to compensate and that wasn’t upheld the Prospers can be so charged then. It took 2 years for the Inspector to complete his investigations, claiming that other more pressing matters kept cropping up. The Report was that too much time had passed and memory faded.

Mr Prosper surprisingly admitted to taking the GE Phone and Digital answering machine to his house but when asked to return it he claimed he subsequently dumped it. He was charged and placed before the Magistrate on November 16, 2016 for the two items only. He appeared in court, pleaded guilty, was reprimanded and discharged unknown to me. No costs were awarded. Following up on the matter, the Claimant received a letter from the Commissioner of Police dated June 15 2018 advising of all the above shenanigans.

Statements from Holetown Police station including one from Stn Sgt Edwards of the Tactical Response Team who was part of the investigation in 2009 was finally received. Included were photos taken by the Prospers of the interiors of the dwellings identifying some of the very items charged as missing.from the premises and close-up photographs of photos of the minor (child occupant) on the walls. This suggested a keen n uncanny interest in the minor and led to a closer look and audit of the minor’s belongings and thereupon discovered an alarming amount of other personal items missing totalling tens of thousands.

Civil action was filed in the High Courts in June of 2019 and first docked in November 2019 and dismissed for non appearance of the Claimants. The matter was Reinstated forthwith in December 2019.

That brings it to three times the Prospers were before the law courts for this matter, Fly out of jail but still always back to face the Claim.

It ain’t over till its over.

22 comments

  • Daily now we are hearing about landlords taking a more aggressive position regarding tenants and in a COVID-19 period tenants leveraging this to their advantage. Any guesses if it will get worse?

    Liked by 1 person

  • The prevalence of Landlords breaching Tenants’ rights to peaceful enjoyment.

    Tenants are humans. Tenants’ children’s lives matter.

    ++++++++++++++++++++++++++++++++++++++++

    The prevalence of Landlords breaching Tenant’s rights to peaceful enjoyment of occupation is minor when compared with the number of times Landlords are deprived of their right to peaceful enjoyment of the proceeds of rent

    After all, Landlords are humans too!!

    Their children’s lives matter too.

    But having stated the obvious I see the name Harcourt Gill of Smith and Smith mentioned and expect there to be a whole lot more in the mortar than the pestle!!

    Like

  • @Cherfleur “The Claimant claim is that sometime between January and April 2009”

    David this matter is from 2009, nothing to do with COVID19

    @Cherfleur “the Claimants migrated overseas”

    If the claimants had migrated had they notified the landlord or his/her agents that they had left the country and vacated the premises? This happened to a friend of mine. The tenant left without notice, leaving all of his things in the apartment. 30 days passed, 90 days passed and no word form the guy. The landlady who is a real-real softie found some free storage and stored the things there, and rented the apartment to somebody who needed a home and who was willing and able to pay the small rent. 2 years later still no word. So the things went to Mangrove landfill, 5 years have passed and still no word. The apartment owner still does not know if the former tenant is living or dead, has migrated, is imprisoned somewhere, is living illegally somewhere and is staying put i order not to attract attention from immigration authorities? Still no word.

    @Cherfleur “audit of the minor’s belongings and thereupon discovered an alarming amount of other personal items missing totalling tens of thousands.”

    Do Bajan minors really own tens of thousands dollars worth of stuff?

    @Cherfleur “The Claimant claim is that sometime between January and April 2009”

    So if the tenant/claimant was not in actual occupancy of the premises between January and April; 2009 was he/she paying the rent for that period? Because I find it impossible to believe that a landlord would evict a tenant who pays the rentini full and on time.

    Liked by 1 person

  • @ Cuhdear Bajan * do bajan minors really own tens of thousands of dollars*
    You always make me lol.
    I do not know what creed of Bajan minors you know, but yes many do own such. This is not toys spoken of. Its very valuable pieces.

    Like

  • @ John
    yes there is more in the mortar than the piston. that’s why Smith & Smith/Mr Gill is a party to the Claim.
    Yes Landlords are entitled to their dues. I beg to differ that the incidence of landlord losing rent is greater than tenants losing peaceful enjoyment. Often Tenants simply move on with their disrupted lives and Landlords repeat the crass behaviour again and again.
    Tenancies are agreements with understandings and expectations. When either party breaches one or more of those then there is a breakdown and the correct course of action is remedy amicably or in the courts.
    It is not to the landlords’ advantage to move in without a Court Order to change locks and especially not to remove items that are not theirs. However,iIt wasn’t the Landlord who stole the items but the Agent/s and they didn’t steal if for the Landlord but for their personal use.
    There was an agreement between the RBPF and the defendants to compensate for the items but they reneged on that and this is why this matter is before the law courts now. There are no serious issues and definitely no claim for rent now nor in 2009.

    The law is especially intolerant where minor children are involved in these situations.

    Like

  • @ Chudear Bajan I find it impossible that a landlord would evict….
    You would be shocked at what Landlords do, especially when they know the Tenants are not legal immigrants. Some raise rent so often it is like the daily sunrise.
    But I would like to inform you that the law does not empower Landlords to evict. Only a Magistrate can give an Eviction Order and the Landlord must go to court and request that Order. To do anything otherwise will result in these same proceedings.

    Like

  • “Yes Landlords are entitled to their dues. I beg to differ that the incidence of landlord losing rent is greater than tenants losing peaceful enjoyment.”

    @ cherfleur

    Is this a ‘hunch’ on your part or do you have supporting stats to substantiate your claim?

    Do police officers have the authority to establish payment arrangements between two parties?

    I’m also surprised minors could “own tens of thousands dollars worth of stuff.”

    What I find disturbing is a brother could manipulate the court system to get papers proving he owns a house his mother left…. and then use the same court system to have court marshals turn up with trucks evict his 76 year old sister and dump her property because she did not have anywhere to go………. without any consideration being given to her age, that she lived in the house for over 50 years, and her brother refused to assist in caring for his mother for the duration of her mother’s illness, only to visit on the day he was informed of her death.

    I also wondered how lawyers could be so heartless and uncaring to take up these types of cases and pursue them until they have the individual evicted, under circumstances I outlined above. Court Marshals are equally as callous as well.

    And, to make matters worse, this same bother said he did not have any money to assist with the funeral arrangements……. but he found money to pay lawyers and court marshals to do his dirty deeds.

    Like

  • @ Artax Is this a ‘hunch’ on your part or do you have supporting stats to substantiate your claim?
    I will not come in a public domain and make such statements idlly, or to promote/support my case.
    I know this for a fact. Landlords who are themselves Police and or Lawyers do it. They use their status to intimidate the Tennants. Once an old lady reported to me that a Police Officer who was representing an overseas family was badgering her to move and threatening her. He had keys to the side door but it is usually bolted when she is at home. So he would turn up and insert the key. She lived there for years and paid her rent but was out of work and after the first month of no rent, he began the harassment. One day he called her to say he was coming there and he’s going to throw her out. She called me. I rushed over to the location. When he arrived and turned the knob I presented myself at the window and asked “how may I help”. When he asked for the lady. I told him I was there and am her Rep and anything he has to say to me. There was an exchange, no cussing.
    I took up that matter and wrote the Commissioner. He appointed an Inspector to visit the residence and took a statement and one from me also. Seems that Bro was trouble in the Force. I believe he was terminated. The Commissioner wrote to me thanking me for bringing the matter to their attention. They were particularly embarrassed because I let them know how reprehensible it is that the people charged with representing us are abusing us.
    The Law is a double-edged tool. Landlords need their rent. They invested in their properties and must get it when they want. Tennants too have rights. The correct procedure is to give the Notice to Quit then go to Court. Often it is not that Tennants just want to be bad. The reality is when someone loses their job they cannot pay. If you have been paying all along and can’t now it is unconscionable to move to evict. Often Landlords are the ones that breach first. For example, the agreement is for Landlords to pay water and maintain the property. Many Tennants complain and ask for repairs and get no satisfaction but Landlords present to collect rent monthly or weekly. They often tell Tennants if they do not like it they can move. Moving is not as easy as people think especially for parents. It entails transferring students and lots of logistics like who to keep the children after school. I do not know of any human who would want to stay on in a dwelling that is inhabitable just to spite a disagreeable Landlord.
    At this movent I am monitoring another where the Landlord raised the rent (no upgrade or repairs) and told the Tennant that items in the Supermarkets have gone up. I kid you not. Another renting a private apartment and paying utilities, moved his girlfriend in and the landlord told him its two occupants so she has to raise the rent. Virus or no virus mankind needs to have comfortable shelter. Many give in just for peace but this sets a dangerous precedence. I am not aware of the incidences you report but I do know that some Landlords exploit Tennants especially those they know are illegal. Landlords know full well that a woman with young children cannot live on the streets. Sometimes it matters not how much money you work for, a house that is suitable for your family and their needs are not readily available. So unscrupulous landlords will raise the rent, apply untenable conditions because the know the family cannot move immediately.
    The irony is that many do this without even being registered with the IRS Tenancy Registration. So they are fighting for their ‘pound of flesh’ while robbing the government. This is why they resort to all the threats and unsavory methods of eviction rather than go to court. Otherwise the Magistrate would drop them in jail.

    In the 80s there was a drive for low-cost housing for families Like Oxnards Crescent. Nowadays there is the Grotto (I think, not fully occupies) there is the other by the Airport, (astronomical prices) mostly returnees, and elsewhere but the costs are prohibitive. Which young mother working for a weekly wage and has one or two children can even make the deposit?
    Two decades ago even with a great income Banks were denying women mortages because they weren’t satisfied that the employee would be employed for the duration of the mortgage. So many people are saddled with paying rent and again Landlords are aware of this so they exploit the situation.

    Don’t blame tenants.

    Like

  • @ Artax * also surprised minor owns tens of thousands of dollars of suff* lolol
    don’t let your imagination run ahead of you but do be lateral in your thinking.
    I’ll tell you a story to tell answer you this. In 1996 I was in the High court for custody. Justice Federick Watterman was presiding. One day he shook his head and said “this reminds me of the Halloute’s case”.
    I am not saying I am anywhere near Assad’s net worth. His ex-partner too was faced with obtaining just financial support. My point is maintenance is determined according to too the child’s previous or current lifestyle.

    Activity 1:
    if you have a child or grandchild in your home apply a cost to everything they own (as if insuring them) then tell me how many dollars it is.
    I’ll tell you this much too, kids in the marginal communities have more items than my child. I am frugal but every cent spent is an investment n goes to inheritance. That’s a clue for you 🙂

    Like

  • @ Artax Do police officers have the authority to establish payment arrangements between two parties?

    I don’t understand this question posed to me. Please assist

    Like

  • Can’t expect to buy the minor tens of thousands of dollars worth of stuff and then not pay the landlord in full and on time. If so much money is available to buy stuff, then save some of that money to buy your own home. 20 years ago $20,000 dollars was a sizable down payment on a home of one’s own.

    Better to buy your own lace so the kids don’t have to be knocking ’bout from pillar to post.

    Like

  • In this era of COVID, all sorts of initiatives are being made to protect renters whose incomes have been impacted from landlords and mortgagors from banks

    Many/most people live paycheck to paycheck.

    Common sense would indicate that it is more likely for a renter to be in default than landlords or banks/mortgagees.

    That’s why landlords, banks/mortgagees do not get the same consideration.

    They are expected to be ok but this is not always true.

    Each set of parties need what the other set of parties has contracted to supply otherwise they would not be renting … or letting/loaning.

    The renter/mortgagee has the advantage for the simple reason that he/she/it can afford to invest in the long(er) term whereas the renter/mortgagor can’t.

    That’s just how life is.

    Like

  • oops

    The landlord/mortgagee has the advantage for the simple reason that he/she/it can afford to invest in the long(er) term whereas the renter/mortgagor can’t.

    Like

  • The landlord/mortgagee is often himself/herself/itself a mortgagor … a renter of money!!

    Like

  • This is not a scenario that should be positioned landlord vs tenant. Both have rights however in a covid environment it will be difficult for both parties.

    Like

  • There are good landlords and bad landlords. There are good tenants and bad tenants.

    Like

  • @ cherfleur August 17, 2020 3:23 PM

    RE: “I will not come in a public domain and make such statements idlly, or to promote/support my case. I know this for a fact.”

    According to Donna, “there are good landlords and bad landlords. There are good tenants and bad tenants.”

    You CANNOT use cases you’re AWARE OF and general cases about how SOME unscrupulous landlords operate ONLY, as the basis to conclude you know for a fact “the incidence of landlord losing rent is (not) greater than tenants losing peaceful enjoyment.”

    I could mention SEVERAL situations where landlords were victims of unscrupulous tenants. I know landlords whose compassion and generosity were repaid by tenants moving out owing them rent, while stealing furniture, breaking cupboards, toilet bowls, windows, etc. There are cases of tenants taking advantage of landlords who, because they are not registered with the BRA, does not have any legal method of recourse.

    But, I CANNOT use those examples as a basis to form an unfair opinion, similarly to what you’ve done.

    Do you know how many landlords are in Barbados, both registered and unregistered with the BRA (not the IRS)? Are you aware of how many cases there are involving unscrupulous landlords and tenants, so as to determine which incidences of unscrupulousness between the two are higher?

    In the absence of all the relevant information and statistics, you’re making unsubstantiated speculations.

    RE: “I am not aware of the incidences you report but I do know that some Landlords exploit Tenants especially those they know are illegal.

    I DID NOT report any incidences relative to landlords and tenants.

    Like

  • @ cherfleur

    RE: “I don’t understand this question posed to me. Please assist.”

    You wrote: “The Commissioners’ Office indicated that since there was an AGREEMENT with the Police to compensate and that wasn’t upheld the Prospers can be so charged then.”

    Hence, I was wondering if police officers have the authority to establish payment arrangements between two parties?

    Like

  • @ Artax You wrote: “The Commissioners’ Office indicated that since there was an AGREEMENT with the Police to compensate and that wasn’t upheld the Prospers can be so charged then.”
    Hence, I was wondering if police officers have the authority to establish payment arrangements between two parties?

    Faced with possible criminal charges, Mr Prosper said he would compensate. The Police then accepted that as a reasonable proposition since they said they were acting on instructions and had dumped the items. No charges were filed them.
    The Commissioner’s Office was referring to that agreement/condition which avoided or delayed the criminal charges.

    I hope I answer your question

    Like

  • @ Artax *According to Donna, “there are good landlords and bad landlords. There are good tenants and bad tenants.”
    You CANNOT use cases you’re AWARE OF and general cases about how SOME unscrupulous landlords operate ONLY, as the basis to conclude you know for a fact “the incidence of landlord losing rent is (not) greater than tenants losing peaceful enjoyment.”

    Is this a ‘hunch’ on your part or do you have supporting stats to substantiate your claim?
    Respectfully, I was responding to the above, not realizing that you had asked about statistics. Indeed I was speaking generally. It is not a hunch as to the prevalence of these cases. I am privy to and am involved with too many of these. But I take your correction.

    How do we get the statistics?
    Many of these incidences are not reported to the authorities, especially among illegal immigrants and low-income earners but they speak to whom they feel comfortable doing so to. Many of the premises offered for rent and not even habitable but women with children occupy them.

    Like

  • @ Artax I also wondered how lawyers could be so heartless and uncaring to take up these types of cases and pursue them until they have the individual evicted, under circumstances I outlined above. Court Marshals are equally as callous as well.

    The above was placed among these Landlord and Tenant issues. My apologies.

    Like

  • Minister Cynthia Forde lamented last week the number of tenants being evicted in recent times.

    Like

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