A HIGH COURT judge has ordered a woman who began illegally occupying a Housing Development Corporation (HDC) unit in Chaguanas in 2017, living rent-free for almost a decade, to give up possession.
Esther Cruickshank cannot enter or remain in the three-bedroom single-family unit at Edinburgh 500, Chaguanas, nor can she continue to make any changes to the unit.
These were the orders of Justice Ricky Rahim who also declared that the HDC was the owner of the unit and was entitled to possession of it.
The HDC filed legal action against Cruickshank for her illegal occupation of the unit. She had alleged she was allocated the unit by a former minister of housing, in 2012. This evidence, the judge said, had not been admitted at trial.
At the time Cruickshank was allegedly allocated the unit, it had already been subleased to another family by the HDC.
In her defence, Cruickshank maintained her occupation of the unit was lawful and filed her own counterclaim for possession and equitable interest in the house.
In evidence at the trial, Cruickshank, after being invited for an interview at the HDC, in 2014, two years after she began occupying the unit, failed to provide certain documents to complete the process for allocation.
In 2018, a year after the HDC realised she was illegally occupying the unit, attempts were made to evict her.
She claimed a political activist got her an appointment with the minister in January 2012, and she was promised assistance.
Cruickshank claimed that during a drive-through of the Edinburgh 500 development to look at vandalised houses, she was given the opportunity to request a particular unit and was allegedly told by the minister he would find out if it could be allocated to her.
She alleged she met with the minister several times, and at one of the meetings, she was told she could occupy the unit she pointed out. She moved in in December 2012 and spent over $200,000 to bring it to a habitable state.
In evidence at the trial, she said she attended an interview at the HDC on November 1, 2014, in which she was told there were no available units at Edinburgh 500 and was offered another development in Chaguanas.
The judge pointed out that the evidence showed she failed to inform the HDC at the interview she was already living in the unit in Edinburgh 500 for two years. After she received a checklist of documents, she had to provide to complete the allocation process, she met with the minister again and one of the HDC’s former managers who told her there was a problem with the unit as the house was owned by people who now appeared to be interested in it. Cruickshank was offered a house in Gasparillo but said she informed the manager she already invested in the house so it would be difficult to move.
Cruickshank claimed she visited the leaseholder for the property who allegedly said she was not interested in the house. She also said she was eventually told the unit was allocated to her and she received a letter for her electricity connection.
Months later, there was a new general election and a change in government in 2015 and Cruickshank said she tried to meet with the new minister and when she could not, she was told to wait until the HDC called her.
The HDC maintained that she has been living rent-free since she moved into the house, and she could not rely on alleged assurances by the former minister especially since there was no recommendation on record. The HDC also contended that it could not allocate a unit to her because it had already been leased to another family.
It also contended any money she spent on the unit; she already had the full benefit of it.
In his ruling, the judge said it was clear from the evidence, Cruickshank did not go beyond the second stage of the allocation process of providing requested financial documents, it appeared that a Cabinet Note (Cabinet Minute 2730-2008/09/25) allowed the minister to allocate units to victims of fires, natural disasters and under other special circumstances.
He said it was interesting that the note was silent on if the application was bound to fulfil the mortgage qualification aspect to finance the house, but its omission clearly suggested that financing was not a criterion when an allocation was made in special or emergency cases.
However, he held that it was unlikely that a minister would make the call for the allocation of a unit without ascertaining the facts relating to its ownership or the land on which it stood.
The presumption of regularity presumes that public officials discharge their duty honestly and in accordance with the law, also adding that it was the court’s view that the HDC was “not in the business of giving out houses for free.”
In his ruling, Rahim said Cruickshank failed to call the former minister as a witness or the former HDC manager.
He also said that based on the evidence, when she attended the interview in 2014, she “purposely” hid the fact she was already living in the unit for two years.
In resolving the claim, Rahim also held that the HDC did not promise Cruickshank she could have possession f the unit or allocated it to her.
“It follows as a matter of law that she holds no equity in the house. In any event, if the court is wrong and she does in fact hold equity, she has paid absolutely nothing towards the occupation of the unit since the year 2012, and so she has had the full benefit of the money she has spent.
“It follows that the defendant is not entitled to remain in occupation of the unit as she is a trespasser.”
While the HDC can take possession of the unit and Cruickshank has to leave, there is a 30-day stay on the court’s ruling.
Cruickshank also will not have to pay damages for her trespass because of the work she did to the unit to the corporation’s benefit but does have to pay its costs amounting to $28,000.
The HDC was represented by Kerwyn Garcia, SC, while Asha Watkins-Montserin represented Cruickshank.