Adrienne Mars for and on Behalf of Adrienne B Mars Real Estate Trust 1 Claimant Brian Hollander 2 v Secretary of State for the Foreign and commonwealth Affairs

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Redhead J.
• Judgment Date: 19 January 2012
• Judgment citation (vLex): [2012] ECSC J0119-3
• Docket Number: CLAIM NO. MNIHCV2008/0012
• Date: 19 January 2012

Between:

Adrienne Mars for and on Behalf of Adrienne B Mars Real Estate Trust

1^st Claimant

Brian Hollander

2^nd Claimant

and

The Secretary of State for the Foreign And commonwealth Affairs

1^st Defendant

The Governor

2^nd Defendant

[2012] ECSC J0119-3

CLAIM NO. MNIHCV2008/0012

IN THE EASTERN CARIBBEAN COURT

HIGH COURT OF JUSTICE

(CIVIL)

1 Redhead J. On 22^nd May 2007, Adrienne Mars entered into a lease agreement with the Governor of the island of Montserrat on behalf of the Secretary of State for Foreign and Commonwealth Affairs. This agreement was for the lease of premises known as "Mars House" for a term of 33 months from 1^st June 2007 at US$6,000 per month. One Mr. Mark Twigg and his wife occupied the Mars House. The former held the position of Head of Governor's Office Montserrat. Mr. Mark Twigg died tragically in a road accident in August 2007, about two months after he went into occupation of the Mars House.

Redhead J.

2 On 6^th November 2007 Ms. Sue McCarty, staff officer in the Governor's Office, wrote to Mr. and Mrs. Hollander in the following terms:

"Tenancy Agreement. "The Mars House"

I am writing to you to give you 90 days formal notice of the office's intention to terminate our lease on the above property under the terms of the tenancy agreement made on 22 May 2007.

As you know, we took the lease on the property as a dwelling house for Mr. and Mrs. Mark Twigg. Due to most unfortunate, unforeseen and extreme circumstances, we are no longer in a position to be able to retain this property".

3 Mr. Brian Hollander and Mrs. Dyann Hollander were the agents of Mrs. Adrienne Mars, the owner of the demised premises. The lease was terminated in November 2007 by the second named defendant by giving 90 days formal notice of termination. The reason given for the termination of the lease agreement was that the Mars Home had been rented for Mr. and Mrs. Twigg and due to the most unfortunate and extreme circumstances, the defendants were no longer in a position to retain the property.

4 On 6^th November 2007, Mrs. Dyann Hollander by e-mail wrote to Ms. Sue McCarthy in the following terms:

"Before I relate your intent of terminating the lease on the Mars property to the owners, can you help me with the reason under which such termination could be validated within the intention(s) of lease witch (sic) was drafted with the intention(s) that the lease could be terminated basically if the position filled by Mark was terminated witch (sic) is not thecase, or a break in the Diplomatic relationship between the UK and

Montserrat witch (sic) also is not the case…

I need some help here..Maybe AG could advise.

Warm regards

Dyann"

5 Ms. McCarthy replied on 16^th November 2007 as follows:

"AG has advised that although the termination clause says that the tenancy can be terminated in cases of unforeseen or extreme circumstances such as natural or man made disasters, closure of Governor's Office etc, it does not mean that the lease agreement can only be terminated in the circumstances listed there. The items listed there are only examples of some circumstances. Any unforeseen or extreme circumstances can be a basis for termination under this clause.

The house was rented with the intention that it would be the residence of Mr. Mark Twigg and his wife, while Mr. Twigg was working with the Governor's Office. As you know, the Twiggs looked long and hard for the property they liked and this house was selected because the couple loved the house. Mr. Twigg's sudden and untimely death is an unforeseen circumstance. None of the parties here anticipated that anything like that would happen. For this reason we are seeking to terminate this lease agreement".

6 On 14^th April 2008, the claimants filed a Statement of Claim against the defendants in which they claim the following reliefs:

• i. A declaration that the lease agreement made in writing between the 1^st Defendant and the Claimants made on the 22^nd May, 2007 whereby the 1^st claimant granted a lease to the defendant upon certain terms of property situated at Woodlands and known as "The Mars House" for a term of 33 months from June 1, 2007 is a valid and subsisting lease is binding upon the defendant.

• ii. An order for specific performance by the defendant to continue to take the lease.

• iii. Damages for a breach of the lease agreement in addition to or in lieu of specific performance or at common law.

• iv. Damages for breach of contract.

• v. Interest on any sum found due at such rate and for such period as the Court shall think fit.

• vi. Further or other relief.

7 I reproduce hereunder what I consider to be the most important part of the lease agreement.

"A Tenancy Agreement in respect of Premises in Woodlands owned by Mrs. Adrienne Mars

An agreement made May 22, 2007 between Mrs. Adrienne Mars for or on behalf of Adrienne B. Mars Real Estate Trust dated 8/8/89 (Hereinafter called the Landlord) of the one part and Her Excellency the Governor of Montserrat on behalf of the Secretary of State for Foreign and Commonwealth Affairs of the United Kingdom and Northern Ireland, whose address for the purpose of this agreement is, Office of the Governor, Farara Plaza, Brades, Montserrat (Hereinafter called the Tenant) of the other part.

Whereby it is agreed as follows:

The Landlord lets and the tenant takes the premises known as "The Mars House"… from June 1^st 2007 …until February 28^th 2010, for a period of 33 months at US$6,000.00…to Dyann and or Brian Hollander (Hereinafter called the Agent representing Mrs. Mars), for the duration of the tenancy with no increases for a total sum of US$198,000.00

Both parties could agree to extend this lease if necessary.

In cases of unforeseen or extreme circumstances, such as natural or man made disasters, closure of the Governor's Office or the termination of the Tenant's position in the Governor's Office, the tenant may terminate his tenancy...