Court overturns Sark eviction order

Tuesday 07 September 2021

A Sark leaseholder who was served a notice of eviction by her landlord has got a reprieve after appealing the decision in Guernsey's Royal Court.

A long and complicated legal battle was brought before Lieutenant Bailiff Hazel Marshall QC, who was required to assess the appeal and decide whether the Seneschal at the time, Jeremy La Trobe-Bateman, had made a mistake in his judgment on 20 August this year.

Sark’s new land reform laws came into effect on 1 February this year, and requires that ‘before a landlord can enforce the termination of a lease for a breach of any covenant, the landlord must serve… a notice on a tenant’.

This is where the tenant disagreed with the enforcement action approved by Mr La Trobe-Bateman.

The tenant paid £165,000 in 2012 to take on the leasehold of a private property in Sark. Her landlord claimed that she had broken the terms of her tenancy, including a failure to carry out repairs to the property and numerous occasions when payments were delayed.

The amount owed by the tenant was calculated at around £5,000.

In an email exchange, the land owner said that due to these broken covenants, the lease had been breached and had been terminated. 

Pictured: Sark’s change in law has allowed tenements, parcels of land, to be subdivided and mortgaged. This was the first appeal made under the 2019 Land (Reform) Law. 

The tenant contested both the termination of the lease and the eviction order, arguing that an email doesn’t constitute a ‘served notice’ and therefore an eviction order couldn’t be upheld.

A further appeal brought the Seneschal’s decision to Guernsey’s Royal Court, where the Lieutenant Bailiff had to sift through a convoluted history of litigation to decide whether or not her appeals were valid.

“The tenant has a somewhat “scattergun” approach to dealing with litigation, at least in these proceedings,” said Mrs Marshall.

“This has produced a very complicated and muddling result for the purpose of trying to extract what is actually the essential and operational point of any application, owing to so much duplication and repetition. 

“I therefore have sympathy with the Seneschal, seeking to identify the real essence of the matter at the hearing on 30 April 2021,” she said.

Mrs Marshall agreed with the Seneschal’s judgement, providing a wealth of evidence to support an email as a valid way of ‘serving a notice’.

However, she didn’t believe that what the leaseholder stood to lose - proportionate to the damage caused - had been sufficiently thought through. 

If evicted from the property, she would lose about £82,500 of asset in the bought lease, as she has roughly nine years left in the property.

Mrs Marshall ruled that the eviction order should not be enforced without the matter being considered further. 

Pictured: The appeal was held in Guernsey's Royal Court.

The case has now returned to the new Seneschal of Sark, Bethan Owen, who will look at extra measures to protect the landlord from "continued aggravation and damage" caused by the tenant.

“The tenant simply has not been given the opportunity to make out the case that she should be allowed that chance, and that relief, from total forfeiture,” Mrs Marshall concluded. 

“In my judgment the omission to deal separately with her expressed application for relief from forfeiture was an unfortunate mishap, and certainly, in all the circumstances, no great criticism of the Seneschal who otherwise handled what must have been a difficult case most effectively.

“As indicated, that determination requires a proper consideration and a discretionary decision on all relevant evidence, such as the value of the asset which would be forfeited, the consequences of such forfeiture, the seriousness of her behaviour complained of and the likelihood that she will now, in fact abide properly by her tenancy obligations.”