Land Court president calls for review of leasing arrangements

The President of the Land Court has called on the Minster for Lands to review the way it registers leasing arrangements.

His comments come after a hearing into claims arising over the right to a block of land that had passed into the hands of four brothers and been the subject of dispute by some of their descendants.

Owen Paulsen, presiding, said it help prevent disputes in the future if leases were to state at least that co-lessees hold the lease as joint tenants or as tenants in common and in what shares.

He said the case also highlighted the need for the Ministry to take care when drafting leases and dealing with them upon the death of co-lessees.

Four brothers, William Wight (William), Charley Wight  (Charley), Fred Wight (Fred) and Harry Wight (Harry) were the holders of a registered lease of land, known as Ha’amea, at Liahona. The lease was then transferred to Charley, Fred and Harry. Charley and Fred died before Harry. On their deaths no one applied for Letters of Administration or claimed their interests in the lease.   On Harry’s  death  one of his sons, Raymond Wight was granted Letters of Administration of Harry’s estate and he claimed the lease and the right to occupy the land.

However, Douglas Wight (Douglas),  Fred’s   only   child,  occupied   the  land.

Raymond sought an order evicting Douglas from the land and also for the payment of damages for unlawful occupation.

Mr Paulsen said the primary issue was whether the three brothers held the lease as joint tenants or tenants in common.

William .F. Payne  Wight  moved to the United States and died there in 1952.

On May 9. 1974 William was granted registered lease No.  2984 of 41a OR 0.3p of the land formerly leased by his father for a term of 50  years   from   November  15, 1974  to   November 14,  2024.

By an Indenture dated November 25, 1976 William  transferred  the  lease to himself, Charley, Harry and Fred.

Throughout their lives the four brothers were close and there was no evidence of any disagreements arising between them. Each brother had a roughly  equal area of Ha’amea for his use.

William,  Charley  and Harry each grew crops and exported fruit and vegetables and raised animals. Fred was in New Zealand and not involved in the export business.

By an Indenture dated May 12, 1980 William transferred the lease to Charley, Harry and Fred and  it  was  re-registered  as  lease  No. 2984C.

Raymond  said  that  William  sold  his  interest  in  the property, Ha’amea  to Harry.

A few years later Charley and his family moved to the United States.  Harry’s work as a teacher took him and his family to the Gilbert Islands and Western Samoa. Fred returned to Tonga and lived on Ha’amea with his wife and Douglas in a house that he built.

About 1990 Harry returned to Tonga and lived at Ha’amea. Harry’s wife and children, including Raymond, migrated to the United States but Raymond travelled back and forth between Tonga and the United States.

Fred died in 1992. Fred’s  widow  moved with Douglas to Ma’ufanga and then migrated to the United States and remarried.

Charley died in the United States in 1993 or 1994. Harry survived  Charley  and Fred  and remained living at Ha’amea.

From 1995 Raymond started to run cattle on Ha’amea. He has also paid the rent and the outgoings on the property since then.

In 2012, Douglas was deported from the United States and returned to Tonga. He asked Harry for permission to live on Ha’amea  and did so for a time in what was known as the Hut. Douglas said that he told Harry that he had a claim to Ha’amea. Harry rejected the notion. Disagreements arose between them and Douglas  was told to leave.

In late 2014, Harry needed medical treatment in the United States. On about 10 October 2014 he signed an authority to his nephew Sione Fatu Wight (Sione) to care for Ha’amea and the  cattle that were on the land.  Sione is a son of William.

Harry went to the United States in late 2014. Douglas returned to Ha’amea and again lived in the  Hut.

In July 2015, Harry signed what purported to be a will in which he expressed a desire to leave all of Ha’amea to Raymond,  Mr Paulsen said.

About October 2015, Raymond realised that Harry was not going to return to Tonga and gave Douglas permission to move into the main house

Harry died on April 12, 2016 in the United States. No application for Letters of Administration of his estate was made at that  time.

There was then a significant change in Douglas’s attitude towards Raymond and Sione. Without permission, Douglas cut down trees and slaughtered cattle on Ha’amea.

In February 2017, Raymond came to Tonga and started legal action to evict Douglas from Ha’amea, but he withdrew that action because he had not applied for Letters of Administration.

He returned to the United States but returned in June 2017 when another cow went missing and Douglas disconnected the water lines.

Raymond was granted Letters of Administration on  August 2, 2017. The only asset in the estate was Harry’s interest in the lease.

Mr Paulsen said Raymond’s case had been that Charley, Harry and Fred held the lease as joint tenants and that the lease devolved upon  Harry  by right of survivorship. The defence argued that the brothers held the lease as tenants in common.

Mr Paulsen said lease was last transferred  to the three brothers by  the Indenture of 12 May 1980 without any indication that they were to hold the land other  than jointly.

On the face  of  the  lease,  the  three  brothers  could  be understood to have held the lease as joint tenants and must be regarded as such, Mr Paulsen said.

He said Raymond had testified that William sold his interest in the lease to Harry alone.

The acquisition  by  one joint tenant of a greater share would sever a joint tenancy because it destroyed the unity of interest.

“This was family land that had in effect been passed down from the brothers’ father to them all.

“It could not have been  the  brothers’ intention that upon their deaths the lease would pass to the lucky survivor of them and to the exclusion of their own immediate families.”

Mr Paulsen said Raymond  had  been granted Letters of Administration in respect of Harry’s estate and he had the right to bring an action for possession of the land.

However, Raymond held Harry’s interest in the lease as a trustee to administer and distribute it in accordance with the Probate Act and might be subject to the supervision of the Supreme Court in this regard.

He said Douglas had no interest in the land. On the death of both Fred and Charley their personal property, which included their interests in the lease, vested in the Supreme Court and became Crown property.

Where a person died wholly  intestate, Letters of Administration must be obtained for the purposes of administering and distributing their estate. Douglas had not applied for Letters of Administration for the land.

Mr Paulsen said Raymond has established a right to administer Harry’s estate and therefore he ordered that Douglas must leave Ha’amea immediately.

Douglas was also ordered to pay Raymond TP$100 damages and his legal costs.

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