DEAR MRS MACAULAY,
I purchased a property jointly with another party through the National Housing Trust (NHT). Both of us got an individual mortgage amount to repay. The other party has since abandoned the mortgage, migrated, got married, and seemed to have simply forgotten about their obligation. This has resulted in me having to be paying both mortgages in an effort not to lose the property. Can I lodge a caveat against the title to recover the sum paid on the other mortgage whether I am alive or dead (through a will)?
The way you acted was very prudent and thankfully you were in the position to do so. But in answer to your question, you cannot make a will about a jointly owned property. The law is clear that when a property is jointly owned and the interests were not severed up to the death of one of the joint tenants, upon the death, the deceased's interest passes to the surviving joint tenant. The survivor will then have to apply to 'note the death' of the deceased joint tenant on the title, whereby the entire interest in the premises would be registered in the sole name of the survivor.
I would suggest that you act now. Obtain the services of a lawyer and have them prepare an application to the court for a declaration that you are the sole owner of the property, and that he or she holds the other party's interest in trust for you because the other joint owner has abandoned his or her interest in the premises. And state further, that you were forced to assume the payments of the mortgage instalments while continuing the instalment payments for your own mortgage in order to save the property from a forced sale through no fault on your part.
You must also ask the court, in addition to the declaration that you are solely entitled to the property, for the necessary consequential orders for you to be registered as such on the certificate of title and that the registrar of the Supreme Court sign, if necessary, on his or her behalf, any document to effect such orders. You need also to apply for an order for personal service not to be required, but for substituted service of the processes as directed to be effected instead, if you do not know the address of the joint owner. This could be by way of a number of advertisements of the notice of the proceedings in an overseas Jamaican newspaper, and/or upon a family member you know would be or is in contact with him or her.
If you had paid off both loans and the mortgages had been discharged, you could make your application directly to the court, but since you are still paying you ought to either obtain the consent of the NHT, or inform them of your application, as it will result in the joint interest registration being in your sole name and in the two mortgages being redone in one mortgage deed for you to execute following the orders of the court, as the trust decides.
The long and short of it is that you should get the situation sorted out now while you are alive and can conduct and control the steps necessary to ensure the results you ought to have. You have all the proof of how you came to purchase the property and what you have done and had to do in order to secure it. I see no reason why you should not succeed in ending up with the property in your sole name on the certificate of title.
So please retain the services of a lawyer to assist you and act now.
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 email@example.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
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.