Dad cheated, mom wants property sorted

All Woman

Dear Mrs Macaulay, My children's dad and I purchased a house some years ago as joint tenants. The mortgage premiums came from his salary on the advice of the attorney at the time. I, however, had my rent cheque paid in his name and once that was discontinued by my company, we decided to split utilities and other expenses to even things out.

I recently found out that he cheated. I am currently living outside of the country and want to know what my rights are as they relate to this house. We have three children together and the eldest child's name is on the title.

Before I commence answering your concern, I must comment on the fact that you did not explain how your eldest son's name got to be on the title and when this was effected. I can assume that he was added as a joint tenant by you and your partner in order to secure the property for him and his other siblings in case you and your partner died, either together, or one shortly after the other. In this case, your son would be the survivor in such circumstances as well as the owner, but in trust for himself and his siblings.

Or, upon him being added, was the joint ownership of your partner and yourself severed and each of you became tenants in common?

Anyway, for the purposes of this response, I am going to assume that your son was added as a joint tenant to the title on the basis that he would hold the entire premises in trust for himself and his two siblings in the event that he survives both you and his father.

You say that you wish to know what your rights are regarding the property. This is very straightforward because you are a proprietor registered on the title. But because your son is also a registered owner, on the face of it you are each entitled to one-third of the market value of the property. However, this could change if the intent of you and your partner in putting your son's name on the title merely intended him to be a trustee of his interest for himself and his siblings. You could try to establish that there was no intent to give him an interest in fee simple in the property.

It would be a matter for you to decide whether you would wish to file a claim for your interests in the property to be determined by the court and to order a partition of the interests and the sale of the property and the division of the assets in the proportions as decided by the court. Or you can ask for the joint tenancy to be severed and you three to become tenants in common, wherein you will each hold your one-third interests separately and you can dispose of yours to either your husband or son by selling your share to them. If they, however, refuse to do this, you would have to file a claim in the court to obtain your interest.

There is no doubt that you are entitled to a one-third share in the premises, but it could be a one-half share if you are prepared to go through what may be a hard-fought court battle to nullify the legal interest of your eldest son. You ought to obtain the services of a lawyer to whom you should give more facts about what happened with you three being registered as joint proprietors on the title.

You are no longer living in Jamaica, but you can still instruct your lawyer from where you are and the documents could be sent for your signatures and you need only attend for the actual hearing. Or if you cannot travel to Jamaica for the hearing it can be arranged for you to give your evidence on Skype and be cross-examined therein.

You can proceed to take steps to realise your interest in the premises you bought jointly with your partner even while you remain abroad. You must decide whether you wish to act now or wait to sort out the matter of your interest in the property, the acquisition of which you contributed to greatly.

I hope that I have made the position clear for you so that you can make a properly considered decision.

Good luck.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.

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