The law of landlord and tenant in Anguilla is a minefield of bad
law. Neither tenant nor landlord has the
protection of a properly thought out statutory regime governing their
relationship, unlike in most of the Leeward Islands.
During the 30-odd years that I
was called on to advise Anguillian landlords on the proper procedure to evict a
non-rent paying tenant, I was constrained to explain there was no better or
more effective method than banging a large kettle with an iron spoon outside
the bedroom window early in the morning.
It was either that or start a law suit in the High Court. As for tenants who were being persecuted by
avaricious landlords, I explained there was nothing a landlord could do (short
of paying an exorbitant legal fee to bring a lawsuit in the High Court) to
evict the tenant. Of course, the use of
force on either part was always prohibited by common law.
Today, thirty eight years after
I began the practice of “law” in Anguilla in the year 1980, the situation has
not changed. Other than the obscure
common law rules, no modern statute regulates the relationship of landlord and
tenant in Anguilla.
The Recovery of Rent Act of
Anguilla is a very old law of the Colony of the Leeward Islands. Anguilla has inherited it from the former
Associated State of St Kitts, Nevis and Anguilla. It was enacted in 1890. It is written in the languorous and discursive
style of one of the novels of Jane Austin.
Additionally, its text is dense and impenetrable.
The main object of the Act was
to provide a mechanism for landlords to distrain. This process of ‘distress’ involved seizing
the livestock, furniture and goods of tenants who were delinquent in paying their
rent. These goods were sold by a
licensed Bailiff to recover arrears of rent. No court process was involved. Because it was a self-help remedy, it could
lead to ill-feelings if not violence.
This Recovery of Rent Act
of Anguilla is obsolete and needs to be replaced by a modern law of distress. An illustration of its obsolescence is seen
in section 6. This section gives the
landlord a remedy where the tenant’s goods have been fraudulently removed or
concealed to prevent their being distrained.
In such a case, the landlord may file a complaint in the Magistrate’s
Court. If the complaint is proved, the
Court may impose on the tenant, or on the person who assisted the tenant, a
penalty of double the value of the goods.
If the person fails to pay the penalty, the Court may commit that person
to prison for up to 3 months. This is a
pretty draconian remedy. It is meant to
frighten off any tenant or his aider who is minded to conceal the tenant’s
furniture and possessions from the distress procedure. However, the Magistrate’s jurisdiction is stated
to be limited to cases where the value of the goods fraudulently carried away
does not exceed EC$24.00. In other
words, the provision is obsolete, and does not apply to modern items of
furniture such as a stove or fridge.
This Act needs to be seriously overhauled and or replaced by modern
recovery of rent provisions.
The Rent Restriction Act
is a 1939 law of the Colony of the Leeward Islands. It came out of the 1938 labour demonstrations
against the exploitative social conditions of the period which adversely
impacted the working classes. In the
sugar islands of St Kitts and Antigua, workers occupied mainly rented
accommodation in the slums and building “projects”. Few could afford to own their own home. The tenancy system of St Kitts, Nevis and
Anguilla was then, and continued for decades to be, that agricultural workers
paid the sugar estate a nominal sum, perhaps a shilling or 25 cents a year, to
occupy a small house lot. The estate
provided building zones in non-agricultural areas
designated for workers to erect their small chattel houses. The occupants on the estates could never own
their own lot, and were subject to instant eviction if they fell out with the
plantation overseer. In the towns and
villages of the Leeward Islands moveable chattel houses were common. It was normal to see a home-owner, whether in
town or in the countryside, moving house by means of a donkey cart, or later, a
truck.
The Rent Restriction Act of
1939 was an essential piece of social legislation. It was in its time a reforming Act. It set out clearly the rules for a landlord to
give proper notice to quit to a tenant, and vice versa. As with the Recovery of Rent Act, it
was meant to provide modern rules to govern the relationship of landlord and
tenant. It established an inexpensive
mechanism for them to resolve their disputes without having to go to court. It can be said to have provided an efficient
form of Alternative Dispute Resolution.
The efficacy of the Rent
Restriction Act depended on the intervention of the Central Housing
Authority (CHA) in Basseterre. This was
the body established in the 1940s that built inexpensive housing in the
“projects” of St Kitts for rental and sale to workers. The CHA was staffed by administrators who
were experts in the construction and rental of public housing. They were much better placed professionally
than lawyers, magistrates and judges to act as a tribunal for the resolution of
rental disputes. The Act gave the CHA
the power to act as Rent Commissioners. It
empowered the Rent Commissioners to mediate disputes between landlords and
tenants.
However, the Rent Restriction Act applied
only to rental properties that fell within the reach
of the Act. Not every rental property
fell within the ambit of the Rent Commissioners. The Act limited their jurisdiction to very
small properties, that is, to houses and building land of a value not exceeding
EC$10,000. (Agricultural land was also excluded. This was governed by the Agricultural
Small Holdings Act). Rental
properties worth more than EC$10,000 and falling outside the Act were subject
to the jurisdiction of the High Court, or to the Magistrate’s Court in the case
of disputes that fell within the very limited jurisdiction of the Magistrates
Code of Procedure. For properties
outside the Act, the common law on landlord and tenant applied. And, only the
expensive process of court proceedings was available to such a landlord
and tenant who had a dispute between themselves.
The Rent Restriction Act of
Anguilla has been superficially revised to delete the references to St Kitts
and the Central Housing Authority. The
$10,000 value has been removed, so that theoretically the Act should apply to
all rental properties in Anguilla. However,
this admirable aim was not achieved.
Section 2 of the Act limits its
applicability to (a) building land; (b) dwelling houses; and (c) public or
commercial buildings. However, unlike in
St Kitts in the early the colonial period, there is in Anguilla no mechanism for
landowners to set aside part of their property for building purposes. So far as I know, the Planning Department in
Anguilla is not authorised to appoint certain areas as building land to bring
them under the Act. The result is there
is no designated building land in Anguilla.
Section 2 makes it clear that
the Act does not apply to furnished or partly furnished dwellings. The Act applies only to unfurnished houses,
offices and other commercial buildings. There must be very few of these in Anguilla. This provision automatically excludes all of
the furnished or partly furnished houses and apartments available for rent in
Anguilla. These are the large majority
of rental properties in Anguilla.
Nor is there in Anguilla any
public housing department similar to the CHA that can furnish officers with the
necessary expertise to apply the technical rules of the Act. The result is that, to all intents and
purposes, the Rent Restriction Act does not apply to rental properties
in Anguilla.
It would be helpful if the House
of Assembly could widen the applicability of the Act by removing the words
“attendance or use of furniture” in section 2.
That simple amendment would make the Act applicable to the vast majority
of rental properties in Anguilla, and would provide relief to most landlords
and tenants who fall into disputes with each other.
Even if the above limitations were
corrected by amendment, the rules for calculating a fair rent and preventing
landlords from exploiting tenants and vice versa depend on the existence of a
corps of professionals able to act as Rent Commissioners. These are required to calculate and apply the
“standard rent” and the other concepts and rules in the Act. The Act only works if there is a cadre of
trained professionals serving as Rent Commissioners.
So far as I know, no Rent
Commissioners have ever been appointed in Anguilla. In the absence of a mechanism for calculating
fair rents, the ADR provisions of the Act fail to apply. The parties to a rent dispute must instead
bring their issues to the courts. Courts
are notoriously ill equipped with tools to assist in the task of mediating
between landlord and tenant. The court
process in landlord and tenant disputes is expensive, time consuming, and
generally unsatisfactory for all concerned.
The relationship of landlord and
tenant in Anguilla over the last 50 years since the Anguilla Revolution can be
described as a lawless zone. Whichever one
is stronger or bolder, or has more friends in powerful positions, is usually
able to exploit the other, for a time at least.
Both landlords and tenants in Anguilla deserve better than this.
Justice Don Mitchell CBE (Retd)
15 August, 2018
Paper delivered at a Workshop for Training Rent Commissioners in
Anguilla
