Wife worried about stake in family home

By Margarette MACAULAY

Monday, February 04, 2013

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Dear Mrs Macaulay,

My husband and his child (a minor at the time) entered into joint tenancy on a property before I met him. My spouse and I have been in this dwelling for 12 years. The child migrated to Canada before our union and has not returned since.

In the last three years of our marriage he has been diagnosed with Alzheimer's, and as a result I am the sole breadwinner. I upkeep the matrimonial home and pay the property taxes yearly. If my husband should pass on, will I have to leave my matrimonial home? Am I qualified to make a claim on this property?

You say your stepson migrated to Canada even before your marriage and he has never returned to Jamaica since then. You did not say whether he commenced and continued communicating with your husband and whether he knows of his father's deteriorating health (mental and physical) and what his reaction to this was -- apart from the fact that he has still not come to visit.

Clearly, since your stepson was registered as joint tenant with his father while he was a minor, he made no contribution to its acquisition (unless he was a Justin Timberlake), nor do I imagine did he, throughout the years, contribute to the cost of repairs and maintenance of the premises.

On the face of it and pursuant to the Property (Rights of Spouses) Act, you would not be qualified to claim a spousal interest in the property. The reason for this is, (and I hope you are right that they are joint tenants and not tenants-in-common), that as joint tenants the father and son hold their interests not of any part or portion of the property, but that each of them holds his interest in/over the whole property and interest therein. Tenants-in-common hold their interests in the property in identifiable separate shares.

In addition, the Property (Rights of Spouses) Act in its interpretation section defines 'family home' as the dwelling house which is 'wholly' owned by either or both spouses, and constantly or periodically used as the only or principal family residence. It does not include a dwelling house which was given as a gift to one of the spouses and the donor of it intended that spouse alone to have the property and benefit from it. Therefore, since the property was and is registered in their joint names, it is not 'wholly owned' by your husband, as in law it is owned by him and your stepson.

If before he became inflicted with Alzheimer's he had led you to believe that the property was his and his alone and that it would be your matrimonial property and on that basis you contributed to the cost of securing and maintaining the home, then you could at least make a claim for the monies you paid for and put into it to add consequent value to the premises, if any.

You know that pursuant to the Maintenance Act, apart from your moral duty, you are legally obligated to maintain your sick husband as he, if healthy, would also be legally obligated to maintain you.

You will remember that I said above that on the face of it you will not be qualified to make a claim on the property. Well, though it would mean you would have to apply to and maybe fight hard in a court action against your stepson and your husband, you may have a pretty good chance to get the son's interest on the basis of his lack of interest in or failure to exercise any right of possession or undertake any obligation to maintain ownership of or to keep the premises in a good state of repair for over 12 years after he attained his majority.

In other words, you must allege and be successful that he has done nothing whatsoever to demonstrate that he has any interest in the property for 12 years since he became 18 years old and that he has abandoned his interest therein.

You should also argue that the fact that he has been in Canada cannot be relied upon by him as an excuse for the limitation period to be extended in his favour. You will, for these arguments, be relying on the Limitation of Actions Act.

I think that you should make such an application for a finding and declaration that he has abandoned his interest and as a consequence lost his interest in the premises, it having been extinguished, and that an order be made in your favour on the basis that you had acquired his interest as a result of your years in occupation therein.

You should also apply that he be ordered to transfer his interest to you or that the registrar of the Supreme Court signs the transfer in his stead; or in the alternative, that the Registrar of Titles be ordered to cancel the certificate of title and issue a new one in your husband's and your names as joint tenants.

It can be argued that your stepson, in abandoning his interest in and failing to meet any obligation to maintain any such interest, left it all squarely on your lap and you have for the requisite years filled his shoes vis-à-vis the property by preserving it and paying the taxes ensuring that ownership and possession were and are preserved.

So you ought to try to secure what rights you may have acquired over the period of 12 years from your stepson was 18 years old, as a result of clear and obvious lack of interest in and abandonment of his interest in your home.

If you do nothing and your husband dies, in all likelihood, your stepson may then become 'interested' in the property and seek to put you out of your home. This is why I suggest that you take legal action now. Do not wait until you are in a truly more vulnerable position.

So please get yourself an attorney and see about moving forward.

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.


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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