A class action lawsuit has seen Justice Navindra Singh ruling that the City is prohibited from imposing a fee or charge for the issuance of a certificate enabling the transfer of a property under the Deeds Registry Act.
Moreover, those who paid such fees following July 8th, 2015 are now entitled to a refund.
Justice Singh issued the ruling on December 6th in relation to the case lodged on behalf of Gerald Bhoodram and others.
At issue was whether the Mayor and City Councillors of the City of George-town were permitted to impose a charge or fee on ratepayers when such ratepayers request the city to provide a certificate in accordance with Section 16A (b) of the Deeds Registry Act and the Municipal and District Councils Act on the transfer of properties.
The certificate in question confirms that the transferor of the property has paid or made arrangements to the satisfaction of the officer in question for the payment of all rates and other sums due and payable in respect of the property.
Beginning in the year 2015 and continuing, the City of Georgetown had been charging the sum of 0.5% [one half of one percent] of the sale price of the property being conveyed, as the fee for the issuance of be certificate.
The city had argued that it had the authority to prescribe fees and other charges by virtue of Section 302 (35) of the Municipal and District Councils Act.
Justice Singh however found that this was an “untenable” assertion since it is clear that the authority of The Mayor and Councillors to prescribe fees and charges under that subsection refers to the functions of the City Council, which functions are laid out in Part IX of the Municipal and District Councils Act [sections 267 through 303].
“The use of the words “in respect of the doing of anything which the council is entitled to establish, maintain, control or carry on” not only demonstrates that the subsection is referable to thel performance of such functions but clearly shows that it cannot be applicable to the issuance of a certificate which simply confirms that a ratepayer has paid the required rates attached or chargeable to a particular property.
“The issuing of such a certificate cannot be classified as something which the council is entitled to establish, maintain, control or carry on unless specifically provided for in the Municipal and District Councils Act”, the judge ruled.
The judge also noted that Section 301 (4) of the Act provides that the cost of such a certificate is $65.
The city also submitted that the words “and other sums due and payable by him” in section 16A(b) of the Deeds Registrv Act refers to the fee that the Respondent is charging for the certificate.
“This submission is ludicrous The Respondent is in effect submitting that the certificate itself is also intended to show that any fee charged for the certificate was paid, or, even more absurd, the legislators intended for that section of the Deeds Registry Act to empower The Mayor and Councillors of the City of Georgetown to charge a fee for the certificate”, Justice Singh said.
He contended that the city is empowered to do only that which is set out in the governing Act and charging a fee for a certificate required under section 16A(b) of the Deeds Registry Act is not provided for therein.
In the Affidavit of Defence led on behalf of the city, the judge said that the Acting Town Clerk, Candace Nelson, purported to attach copies of a budget meeting and averred that the implementation of a fee calculated as a percentage was “well thought out to garner revenue …”.
“The Court is compelled to state that it clearly eluded Ms. Nelson that section 204 of the Municipal and District Councils Act sets out the manner in which the Council is to garner revenue to meet its expenditure”, the judge said.
The judge therefore ordered that the city is not permitted to impose a charge or fee on ratepayers when such ratepayers request the certificate in question.
“The Court hereby issues an Order of Certiorari quashing the decision of the Respondent/The Mayor and Councillors of the City of Georgetown to charge any ratepayer a fee of 0.5% [one-half of one percent] of the value of the sale price of a property, or any fee at all, to issue a certificate in accordance with section 16A(b) of the Deeds Registry Act”, the judge said.
The judge also issued an Order of Prohibition preventing the city from imposing or demanding such payment.
Furthermore, in light of the class action suit, the judge said that the Mayor and Councillors of the City of Georgetown are to prepare a list of all persons who were made to pay the fee for the certificate. This list shall be submitted to the Registrar of the Supreme Court to be placed in the case file.
The judge further ordered that the city publish a notice in three daily newspapers for three consecutive Saturdays and in the offices of the council informing all members of the public that anyone who was required to pay a fee to the city for the certificate on or after July 8th 2015 “may apply in writing” to the city through the Town Clerk “for a full refund of any fee paid within 180 …days of the final notice being published in the newspapers”.
Furthermore, upon being satisfied that any person applying for the refund did pay a fee, the city shall refund such fee with interest at the rate of 4% per annum from the date the fee was received by the city to the date of reimbursement.
The city is also required to pay the sum of $100,000 as costs to each of the eight applicants.
The applicants were represented by Timothy Jonas SC while Brenden Glasford represented the city.
