Trespass — Order for possession — Measure of damages — Defendants contending award too high — Privy Council holding defendants obliged to pay reasonable rent for use of apartments for 365 days a year — Basis of rent was “wholesale” rate paid by tour operators less appropriate deductions — Appeal dismissed
The defendants owned the Silver Sands Hotel on Grand Bahama comprising of 164 apartments. The plaintiff was the lessor of 30 apartments under a lease dated June 5 1970 for a term of 99 years. The consideration for the lease was US$300,000. In November 1974 the plaintiff was ejected by the defendants. He brought proceedings for possession. The defendants were ordered to give up possession, which they did not do until April 1990. The plaintiff claimed damages for trespass for a continuous period of over 15 years. The plaintiff claimed a reasonable rent for the apartments throughout the period of trespass.
The registrar awarded damages of US$577,500 applying a simple interest percentage to the original investment over 15 years. The plaintiff appealed and the defendants cross-appealed. The Court of Appeal in Jamaica, by a majority, took the starting point as the gross revenue of the whole over a period of 15 years and one month and, making deductions for ground rent, etc, reached a figure of US$1,800,000. The minority view was that an award of US$2,437,843 should have been made. The defendants appealed from the majority decision. The plaintiff did not cross-appeal.
Held The appeal was dismissed.
1. The landlord of residential properties could recover damages from a trespasser who had wrongfully used his property whether or not he could show that he would have let the property to anybody else, and whether or not he would have used the property himself: see Swordheath Properties Ltd v Tabet (1979) 249 EG 439.
2. The plaintiff might not have suffered any actual loss by being deprived of the use of his property. But under the user principle he was entitled to recover a reasonable rent for the wrongful use of his property by the trespasser: see Stoke-on-Trent City Council v W&J Wass Ltd [1988] 1 WLR 1406.
3. It made no difference whether there were 30 apartments or only one. The defendants had had the use of them all for over 15 years. Applying the user principle, they had to pay the going rate, even though they had been unable to derive actual benefit from all the apartments for all the time. The fact that the defendants were hotel operators did not take the case out of the ordinary rule.
4. A reasonable rental value for the 30 apartments for 365 days a year was calculated by taking the “wholesale” rate paid by tour operators, ie the published rate less 35% in the winter and 65% in the summer. It was irrelevant that the plaintiff would not himself have been able to let the apartments to tour operators for 365 days in the year.
5. With deductions for items such as ground rent, maintenance and refurbishment of common areas, the final figure was in excess of the US$1,800,000 awarded below. The defendants had failed to show that the figure should be reduced.
Leolin Price QC and Paul Stafford (instructed by Simons Muirhead & Burton) appeared for the defendants; John Mowbray QC and Sara Hargreaves (instructed by Sharpe Pritchard) appeared for the plaintiff.
