Can my ex's family claim back land?

By Margarette MACAULAY

Monday, January 09, 2012

Dear Mrs Macaulay,

I was in a common-law relationship with the father of my son and my first daughter for 10 years. During our relationship, we got permission from his father to build a house on the father's land. We separated about five years ago after he tried to get abusive and I moved out. I applied to the court for split of property and was in the end given the house. I have since gone into another relationship. My new spouse moved into the house in 2009 when I got pregnant. The situation is that the family of my former spouse is insisting that my new spouse cannot live in the house on their plot of land. Do I have any legal rights in that regard?

Dear ex-spouse,

Your letter raises interesting issues and I thank you for this fact. I will relate the facts as I understand them from your letter and some assumptions that I make about what you said. I hope that I have not mis-read what you wrote and meant.

1. You and your ex-spouse were in a 'real' common-law relationship for 10 years.

2. Your ex-spouse is the father of your son and first daughter.

3. During the relationship, you and your then spouse got his father to agree that you could build your house on a part of his land.

4. That you did so build.

5. Your common-law relationship broke up about five years ago when you separated by moving out because of your ex-spouse's abusive behaviour.

6. On your application to the court for a declaration and partition of property, the court, by order, awarded the entire house/property to you.

7. You started a new relationship and your current spouse moved into the premises in 2009 after you became pregnant with his child.

8. The "family" of your ex-spouse are insisting that your current spouse cannot live with you and your children in your home, as it is on their plot of land.

Now for my assumptions.

* That you established in your court action that you were solely responsible for the construction of your home or service of your application on your ex-spouse was proved to the satisfaction of the court and he did not respond to it or attend court to contest it.

* That after you obtained the court order, you then had him ejected from the premises and moved back in with your children.

* You and your children occupied the premises for some time until your current spouse moved in to live with you.

* That you and your ex-spouse and later you, never paid any sums to your ex-spouse's father for your occupation of the land.

On these facts and assumptions, you ask what your legal rights are. I will comment on the facts seriatim and on my assumptions also.

Re the first and second facts: I hope that apart from taking your ex-spouse to court on the property issue, you also applied for legal custody of your children and for contributions from him for maintenance of your two children. If you did not, you are doing your children a disservice.

Re the third and fourth facts: Since from what you say the father owned the land and he agreed that you and your ex could build on the land, then, if your construction was a permanent one (cement and steel), and not a moveable house, since he not only knew but agreed that you could build, the land on which you built it and a reasonable space of land around it, would be covered by the order — all things being equal. Only if, your house was and is a moveable house would the land on which it stands plus the extra not attach to the house and be yours. In such a case, you would merely have a licence from the father to use the land indefinitely.

Re the fifth and sixth facts: Since your common-law relationship with your ex-spouse ended five years ago and you got the entire premises you had constructed on the applicable principles of law, I am sure that you provided most, if not all the funds for this and this was the reason that you got the order that you did.

Since you then regained possession of the premises and have lived there until your current spouse joined you in 2009, I conclude that you have been in occupation for upwards of six years, during which time you have not paid any sums of money to the father for any leasing of his property, and he the father had and has not bothered you. I also conclude that the father and you, or he and you and your ex-spouse, never had a written agreement about your occupation of the land.

In these circumstances, even if the land did not attach to the constructed premises, the father would be stopped from denying that you had and have a legitimate expectation that your house can occupy the land indefinitely, as he placed no time constraints when he let you build on it.

He would also be liable to pay you for the value of your premises, if he wants 'his land' back — assuming that it is still his, which I doubt, but I would need more facts from you before I can say so definitely.

In any event, where do "the family" come in? You said the father is the owner and not the "family". Or is the father now dead? If so, have they applied for probate of his Will or for letters of administration if he left no Will?

If they have not, then they have no authority to do anything about the land. Additionally, once you have the legal right to your premises, no one has the right or authority — except by way of a properly obtained court order — to tell you who can or cannot live with you in your home. So you can ignore "the family" and whatever they say.

Maybe, you ought to go to a lawyer and get advice about your status regarding ownership or your continuing occupation of the land — whether and when you can legally claim ownership, if you do not already have a beneficial interest therein. You will have to give more facts than you gave me in your letter.

Finally, let me just add this bit of my advice based on my concern. I hope that your current spouse is paying his way by contributing to the expenses of the home. It seems to me that you did not live in this way with your ex-spouse.

You must ensure that your male partners provide their share and so maintain their self-respect. I hope I understood your facts and that you understand what I concluded and have advised.

Meanwhile, I wish all my letter writers and readers the very best for the New Year and that it is filled with all God's blessings for all of you.

Margarette May Macaulay is an attorney-at-law and a 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. Mrs Macaulay cannot give advice via e-mail.

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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COMMENTS (8)

Brooklyn Jamaican
1/10/2012

Ms Carol. weak administration laws and respect for them if they do exist is the problem. In most progressive places you cannot properly and legally install even a kitchen cabinet without a permit and proof that you have legal right to effect changes.
Its crazy that in 2012 in Jamaica, someone can just "put up a house". I will also venture to guess the dad may not even have any papers or else he would have legally transferred some of the land to his son.

Gary Smith
1/10/2012

Men have been shafted for the past 70 years by the western world and this is a prime example of Jamaican women adopting bad practices, not taking responsibility for their actions. Why do you want to benefit from an arrangement that was set on a relationship with your past lover. Thanks to China and other countries, things are changing. Read this:
http://www.chinadebate.com/2011/09/china%E2%80%99s-new-marriage-law-may-exacerbate-gender-wealth-gap-by-leta-hong-fincher/

Ms. Coral
1/9/2012

Brooklyn, you may know the DRAMA that surrounds some of the family owned acreages in Ja. Let’s face it, there will often be discord over property because people do not always maintain congenial relationships. Especially family members. Conflicts over family land is no joke. I know ours is an oral society; but I think that sometimes our oral tradition as it relates to our relationships & property often lead to financial ruin. You'd think people would be more diligent with their lives & property.

Brooklyn Jamaican
1/9/2012

Ms Coral, you have a point there. I do not know what is going to happen to Jamaica when it finally has law and order. When there is a system that says pay your taxes and if you occupy a land you must show how and when you acquired it.

Ms. Coral
1/9/2012

The matter is simple. Should the family get back the land? If they want said property, then it would be right for them to pay her for the house or agree to sell the land. No offense but, I am beginning to accept that relationships forged in certain ways are too loosey goosey. Increasingly we see that there are no marriage contracts, no land contracts, no rent contracts, no bills of sale, & no transfer of title. We need to change the way we view property/property transfer & the family in 2012.

Sean H.
1/9/2012

1. No property was transferred so there is no issue of taking back land. Permission does not mean that ownership was transferred.
2. It is reasonable to believe that permission to BUILD was based on the fact that there was, at the time, a relationship between the landowner's son and this woman.
3. Since there was a common law relationship there is a 50:50 split ownership of the BUILDING regardless of who paid for its construction
*
You can't just lay claim to land w/out transfer of ownership.

Brooklyn Jamaican
1/9/2012

This court that gave split of property is an erroneous court indeed. The only thing that should be split is the house as her former baby daddy is not owner of the land and has no stake. Furthermore issues of her child support and her baby daddy minding her should not be the lawyers concern. This is what happen when peopel recklessly get themselves caught up finacially and emotionally with paper works

Brooklyn Jamaican
1/9/2012

1. Jamaica has some bareface people. Sorry fi mawga dawg mawga dawg tun roun bite you. In other jurisdictions the person with the land has priority and can ask any occupier to revert the land to its previous condistion in the absence of any lease or purchase agreement therewith.
Of course this anti male judge is egging her on with her false assumptions...

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Can my ex's family claim back land?