All Woman

He rented the home we own

Dr Margarette MACAULAY

Monday, August 06, 2012    

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Dear Mrs Macaulay,

I lived with my children's father for seven years. During that time, we purchased a house together and had two children. We migrated for while but he did not come with us; he travelled back and forth to Jamaica. This led to a breakdown in the relationship. The house has been rented since the children and I left, but he also made some addition to the premises and lives there. My children and I returned to Jamaica last year and we have not been able to live in the house; it is still rented. He has not supported the children since 2006 — except for ad hoc visits and the purchase of an outfit now and then.

Can the children and I get access to live in the house? Can I give the tenants notice? Am I entitled to a portion of the rent that is not used to pay the mortgage? How do I get him to pay child support? He does not work formally, but he earns money and does not pay any taxes. He threatened me when I told him that I was going to get a lawyer to write to him about support. Please help me, as though I am in a good job, it is difficult to maintain two children on my own and I don't have the money for an attorney.

You state that you and your children's father lived together for seven years, during which period you purchased premises together. You have not stated how you and he are registered on the title. Are you registered as joint tenants or as tenants-in-common? You say the house has been rented since you and the children left the island. Was this arranged by you before your departure or was it done after you left as a result of your joint agreement? Is the mortgage being paid from the rentals pursuant to your joint agreement? Did you know and agree that he could do the addition to the premises or did he do the addition during the period of your migration and without your knowledge and consent? Did you know and agree that he could occupy and live in the additions he put on the premises?

You have asked what your rights are, whether you can give the tenants notice, so that you and the children can live in the house and whether you are entitled to a part of the balance of the rentals after payment of the mortgage instalments.

If you are registered on the title (I assume your property is registered) as joint tenants, then you both own the entire property. When one of you dies, the survivor merely has to note the death on the title. That person is then the sole owner and is so registered by operation of the legal principle of survivorship. This is what will happen if you are the other joint tenant and did not sever (change it) the joint tenancy to a tenant-in-common.

Tenants-in-common hold their interest in the property separately, and when specific proportions of interests are not designated in the title, then the parties have equal interests in the property. So unlike joint tenants, who hold the whole jointly in undivided shares, tenants-in-common hold their shares separately and individually.

Whether you and your children's father are joint tenants or tenants-in-common, you both have the right to use the premises — whether personally or through rentals. You both have the right to share the net income from any such rentals equally. Please note that I say 'net income'. This is because you both have the obligation to equally meet the necessary expenses to maintain ownership of and the condition of the premises.

Therefore, you are entitled to receive 50 per cent of the rentals, after payment therefrom of the mortgage instalments and any provable expenses for necessary repairs and/or other disbursements like property taxes and income tax.

You are entitled to demand from your child's father a statement of accounts of all rentals received by him and of all payments therefrom made by him with the necessary invoices and receipts for such payments, from the date of the commencement of the rental to the present time.

He should have been keeping such records for your perusal throughout and he is legally bound to periodically provide you with this and pay over your net share. Once you have checked the statements and if you agree with the figures and accept the receipts in proof of his claims of payment of necessary expenses, then you can demand that he pay over to you, your one-half share of the net income for the entire period he solely collected the rentals without accounting to you. You are also entitled to demand that he pays you interest on all such monies due to you, which he had neglected to account for and pay over to you. You cannot get and are not entitled to the entire portion of the rent that is not used to pay the mortgage. You are only entitled to one-half share of the portion left over after payment of the mortgage.

If he refuses to account to you and to pay your net share, then you will have to file action against him for these your entitlements, viz -- an account and your net share of the rentals plus interest.

You have asked whether you can give the tenants notice to quit. Well, if you were not the party who rented the premises to the tenants, then you have no relationship with them and in my view, without an order of a court, you cannot in such circumstances give them notice to quit.

What you should do, in my opinion, is to talk over the matter with your children's father, that you and the children need to return to occupy your home and that the tenants should, therefore, be given notice to quit so that you can move back in. If he refuses, then you will have to take him to court for the matter to be decided.

I should point out that it may turn out that the premises may have to be sold in the open market and then the net proceeds be shared between you two, but with you getting your half of the net rentals as well because the court would definitely order him to account for all rentals received by him and proof of any expenses claimed by him.

The bottom line is that you will have to get yourself an attorney-at-law to file your claims for you with regard to the property, if you and he do not reach an amicable agreement about you moving in and about you getting your half share of the balance of net rentals.

You say you do not have the money for an attorney. Well, all of us lawyers enter into agreements with prospective clients all the time. Lawyers make arrangements for those who cannot pay the fees upfront or concurrently with the work, that on the conclusion of the matter, they are paid whatever percentage is agreed, of whatever monies are awarded to the client by a judgement of a court or as a result of a settlement of the claim. In other words, you can always reach some arrangement with an attorney when you do not have money upfront.

Now let me deal with the important matter of your children. You should use their need for shelter in your discussion with him about you moving back there with them. You should also note that it was and is their family home and it would be in their best interest to be in such a settled home environment rather than the uncertainty of rented premises and with him in close proximity, so that their relationship with him can easily be nurtured.

Then you should talk with him about providing regularly for the children. You must work out what it costs you now to provide for all they need to live from day to day and general clothing and footwear. Leave out educational, medical, dental and optical expenses because these are generally shared 50/50 or in some other percentage. Please, remember that educational expenses include school fees, cost of uniforms for school, sportswear and what have you, books and other school supplies (including back-to-school expenses for the beginning of each school year) and school and sport shoes.

You must also include in their expenses travelling costs and lunch and/or pocket money. You should also calculate their share of utility bills, cooking gas, telephone, cable and Internet charges, if any, and rental, if you are to continue to rent — roughly use one share for each of you of the total of these to get the portion for the children. Add their two portions to their day-to-day support and general clothing and other general necessities and divide it in two and then claim one-half from him as his contribution.

If he refuses to contribute that sum or a reasonable part thereof, then you will have to go to court. However, for maintenance of your children, you can go to the Family Court of your parish and the clerk will draw up your application. However, make sure you include what I said; they can also arrange for the application to be served. You really do not need an attorney for such an application unless he gets one and/or the judge advises you to do so also.

You must also, at the same time, apply for sole custody, care and control of the children with access as ordered by the court to him. This is very important to ensure that you have the right to make important decisions about the children's upbringing and welfare, without any interference from him.

I hope I have clarified matters for you. Good luck and please act quickly.

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. Mrs Macaulay cannot give personal advice outside of this column.

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 attorney.

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