Dear Mrs Macaulay,
I am writing about a land issue between my son's mother and myself. I bought a residential lot in Hanover in 2003. I put her name on the title as joint tenants, which in hindsight should have been tenants-in-common. We ended our common-law relationship in 2012 and she migrated to the United States with my son. I am desirous of taking her name off the title and putting my son on the title. He is now 23 years old, and she is reluctant to have this done. I ask your advice on the matter.
You are a well intentioned person, who was doing what you thought was best for your son. Many such title registrations were done by both men and women in circumstances when there was a child or children, and the purchasing party wished to make provision for them in case of their untimely death. We termed these registrations as done to secure the property for the interest of the child or children "registrations for convenience", especially as the parent placed on the title generally would not make any contribution at all for the purchase and maintenance of the premises. These were done because financial institutions during the mortgage process would not permit the registration of a minor child as a registered proprietor on the certificate of title.
If there was no mortgage loan, and the property was purchased free and clear of such obligations as are attached to mortgages, or the mortgage has been fully settled, then the purchaser (you) could have joined your minor child with you for registration as proprietors on the title either as joint or as tenants-in-common. In this circumstance, the registrar of titles would place a caveat in the title to protect the child's interest during their minority. This caveat could be simply removed when the child attained his/her majority by completing the necessary document informing the registrar with proof of the attainment of majority, and the caveat would be removed.
It is a pity that you did not do this, or even move to have the mother of your son sign a trust deed, stating therein that she was holding her registered interest in trust for your son. Or you could have moved to sever the joint tenancy and made the holdings tenancies-in-common, either with a 50/50 per cent split or a 50 per cent for you and the other 50 split between your son's mother and him at 25/25 percentages each. Then you would draw up a will and give your estates to your loved ones as you deemed fit and best.
Anyway, you did not do any of the above and your son's mother has refused your plan to take her name off the title. Your son is certainly old enough to hold the interest which you clearly intended for him.
This is where the law can and has assisted so many others who found themselves in the same position as you. But you must act and use the law. You must apply to the court for a declaration that you are the sole proprietor of the property, because you had added your son's mother on the title as a matter of convenience, in case anything untoward happened to you and to secure your son's future and interest in the property. You would have to add your supporting evidential document, that she did not contribute in any way to the acquisition and holding of the property, and that you made all the payments. Also, that as your son is now in his majority, that you wish to regularise the registration by including his name instead of that of his mother.
I do not know whether she would take steps to contest your application, especially as it is for the full benefit of her son. Surely, when she knows and understands that it is for her child and not any other person, she should agree.
You should retain the services of a lawyer and proceed to make the application for the declaration and for the consequential orders necessary to remove her name and include your son's instead, as a joint tenant with you, and any further orders that may be necessary and just.
This will cost you a bit, but I am sure it will be worth it to have peace of mind that the property you purchased to ensure that you son benefits, would go to him.
Or, perhaps she may agree to sign a trust deed making it clear that you and she hold your interests in the premises as trustees for your son, who owns the whole interests therein absolutely, or words to that effect.
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 email@example.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
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.