All Woman

We want full ownership

By Margarette Macaulay

Wednesday, March 05, 2014    

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Dear Mrs Macaulay,

In 1992 my wife and I received a half share of a property as joint tenants-in-common.

Following the resealing of probate, we received the title in 2004. The other joint tenant has shown no interest in the business of the property since 1992. The Supreme Court in Jamaica has been acting on his behalf regarding signing of legal documents regarding probate and title. We wish to apply for full ownership of the said property in Jamaica by Adverse Possession. Please could you advise as to the procedure.

Your letter is extremely sparse of facts and rather confusing because you refer to holding a half interest in property with your wife as joint tenants-in-common. There is no such concept of property interest known in fact and in law, because if you and your wife hold half the interest as joint tenants, then this means that you both hold the entire interest without a specific allotment of shares. So you both hold the whole, until one dies and the other attains everything by survivorship pursuant to law, or until you both agree to 'sever' the holding into specific shares or this is done as a result of an order of a court. Once the interests are severed, by whatever means, you will then hold your respective shares as tenants-in-common.

You also refer to "the other joint tenant" who I glean is entitled to a one-half interest in the premises. This cannot be in a property held in joint tenancy wherein all persons entitled hold their interest together in the whole property and not in specific shares.

As a consequence, I must conclude that you, your wife and the other party are tenants-in-common and not joint tenants as you seem to hold specific shares. You therefore hold your respective interest separately and not together in the whole. The property, it also seems, was inherited by you all pursuant to a devise in a will which was probated abroad and re-sealed here in the Supreme Court. Then by an order of the court, all documents which should have been signed by the third party have been signed by the registrar of the Supreme Court on his behalf. You have not stated the reason why this had to be done. Is it because he cannot be found? Or, is it because he refused to sign?

You say that you received the title of the property in 2004, but that the third party has not shown an interest in the business of the property since 1992 and you wish to apply to acquire his interest by adverse possession, so that you and your wife can hold the entire interest.

You and your wife can of course apply to acquire the third party's interest in the property on the ground of your continuous possession and that he has not been in possession and has abandoned his interest for over 20 years. I assume that you and your wife have continuously been in possession of the property throughout the period. The fact of your possession does not mean that that third party with whom you share title to the property has also been in possession based on your possession. He must himself have been in actual possession or have done acts to establish or which establish his right of ownership and to possession therein.

I would suggest that you and your wife apply to the Supreme Court for a declaration that you both are entitled to the interest of the third party because though you, your wife and he are entitled to your shares in the property, that since 1992 only you and your wife have been in possession and have enjoyed all the benefits of the said property, that he has abandoned his interest therein for over 20 years and that you are therefore entitled to his share pursuant to the Limitation of Actions Act.

In your application for a declaration you should also apply that you and your wife are to hold the entire interest in the property as joint tenants or as tenants-in-common as you both wish.

You must also apply, as was the case before, for the registrar of the Supreme Court to sign all necessary documents to effect the transfer and registration of you and your wife as the proprietors of the entire interest in the property in the certificate of title.

You may, of course, need to apply for the third party to be served with your application by way of substituted service through advertisements in a newspaper, if indeed his whereabouts are unknown to you and your wife.

Good luck to you and your wife. I hope that I clarified the position for you.

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.

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