All Woman

Sisters in a property dispute

By Margarette MACAULAY

Monday, July 09, 2012    

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Dear Mrs Macaulay,

In 2005 I purchased a house through the NHT using my sister's points along with my own. Prior to purchasing, my sister was a domestic helper and was not contributing to the NHT. I asked her whether I could get her points if I got her registered as self-employed and got her qualified, and she agreed.

I went to the NHT on her behalf, sorted out the paperwork, and paid up the back money for about seven years of her working life and then I started making monthly contributions on her behalf for a consistent period of time until she was qualified to access the loan.

We got a benefit of two million dollars, one million each. At that time I made the decision to purchase in joint tenancy. I was very grateful for my sister's help and I thought in the future she could use it as an asset or I would give it to her fully whenever I purchased another property or in the case of migration. All the money spent were mine.

A few years ago I was able to get my sister in a stable government job. I was also able to access equity from my property which I used to do some refurbishing. This is where the problems started. My sister is now in a position to purchase property on her own and we were advised by the NHT about the way forward and how she could be released from the property and access her benefit again. However, she seems to be more interested in her interest in my/our property.

I am cognisant that she is entitled to something from the property.

1. What portion of property is she entitled to? I understand the term joint tenancy, however, what will happen taking into consideration the circumstances of my case where she has never made any financial contribution whatsoever?

2. What is the way forward and what do you recommend?

I suppose as this is your sister, you did not think it was necessary for you both to sign an agreement clarifying what her interest would be in the premises, if any, to compensate her for your use of her points.

Because of that, you and she would therefore, on the face of it, be entitled to 50 per cent interest each, unless a court decides and directs otherwise on an application for a declaration of your respective interests, based on the facts related by you and her total lack of actual monetary contribution plus your respective intentions at the time of the purchase.

It seems that the thought of her using her interest in the property as an asset or you giving it to her was a mere passing one and not a serious intention on your part, and so you wish to hold onto your whole property, if you can.

I note that you continued to assist your sister and helped her to obtain a stable position in the civil service and as a result she is now in a position to purchase her own property. However, because she had already seemingly accessed a loan for the purchase of your property, she has to wait for some years before she can be eligible again for 'another' loan.

Clearly, she is not happy now about the position that she is in and so your relationship may be in danger of a serious rupture. It is such a pity that you did not have a written agreement with her at the time of your purchase or that you did not have her sign a trust deed.

Anyway, you say that you know that she is entitled to something from the property. Your conclusion is correct, but only morally. If all that you have related is true — that she agreed that if you got her registered as a contributor and you paid all her contributions, then she would give you her points to enable you to purchase your property and that you have made all the mortgage payments and continue to do so — then a court may decide that despite the fact that you had her registered as a joint tenant, she really only holds her interest in trust for you and she does not have a proprietary interest in the premises.

I am not saying that this should be your stance because despite the fact that you paid all the monies and she agreed that she would give you her points, I am not certain that she was then aware that the effect of her act would be the situation she now finds herself in, when at last she is in a position to purchase her very own property.

You also effected your registration with her as a joint tenant and say that you had "thought" that in the future she could use it as an asset or that you would give it to her entirely when you purchased another property or if you emigrated. Clearly, for you, none of those thoughts now seem to be possibility.

I am sure that your thoughts at the time of the purchase transaction were sincere and that you effected a joint tenancy registration as a result because you wanted to protect your sister if anything happened to you. I do not know what legal advice, if any, you sought and were given at the time of purchase. Were you advised about the possibility of registration as tenants-in-common with a declaration of yours and your sister's respective interests in the property?

I cannot tell you what portion of the property your sister is entitled to. This can be decided by you both, but failing this, by a court of law, which would decide such a question after verifying the evidence of the acquisition of the property and what was the intention of the parties at the time of the transaction and their conduct vis-à-vis the property thereafter.

I suggest that perhaps you should both seek the assistance of a mediator at the Dispute Resolution Foundation, 5 Camp Road, Kingston 5, to help you both fully discuss and decide how best to resolve your issue. The mediation process is a very good and effective one, during which you will have the help of an objective third party, a trained mediator, so that you both can, in a very civilised and respectful manner, discuss the entire situation and then arrive at a decision which is acceptable to each of you. If you cannot arrive at an agreement, then you will be left with the alternative of applying to the court for a declaration of your interests and for the necessary consequential orders to effect the declaration.

I would really recommend the mediation process to you both. It is private and confidential and it gives you both the best chance to discuss your problem without rancour and of preserving your sisterly relationship. Please use a court application as the very last resort. I should add, very concisely, that if you decide to go straight to court, that the matter will be sent to mediation in any event, as a part of the court process.

The fact that you have your sister and she has you around is much too precious to jeopardise over a property issue, so please do mediation first and try to sort this impasse out, so you can remain loving and caring sisters who uphold and watch out for each other throughout your lives. I wish you both all the best.

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 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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