She wants her share of the house

Dear Mrs Macaulay,

My friend was in a relationship for over 20 years which produced two children. They bought a house together where they lived for about 10 years without being married. The relationship was, however, unstable from the start – he abused her verbally and physically.

The children are now grown but the abuse continued until she said enough was enough. She packed up and left and went to stay with her sister. She wants to move on with her life but he does not want to buy her share of the house or vice versa. It has been frustrating for her because any attempt to resolve it amicably has made the situation worse. The last time she tried he told her he didn’t tell her to leave. What advice can you give her regarding the situation?

-Concerned Friend

Dear Concerned Friend,

You did not say how long they have been separated, nor did you say how they hold their interests in the property – whether as joint tenants or as tenants-in-common.

Though none of these questions and the answers thereto will affect the course of action she must take, they are necessary bits of information as you will see in my answer.

She must – in the circumstances you have described that neither party wishes to purchase the other’s interest – apply to the court (whether it should be to the Supreme Court or the Resident Magistrate’s Courts will be determined by the value of the property), for orders for partition of interests and/or for the sale of the property and for payment of all the attendant costs attached to the sale and that thereafter the net share of the parties be paid over to them.

The application must also seek an order that the sale be by private treaty or by public auction. Despite what you say, it would also be advisable to get an order that either party can buy or bid for the other’s interest. When dealing with family property especially, the parties often change their minds about their stated intentions, so it is better to be safe than sorry. If you do not have this order and either one then decides to buy the other’s interest, another application will have to be made to the court if the other party insists on acting strictly as had been ordered.

Other orders which must be sought and made are: that there be a valuation by a reputable qualified realty valuator and also that the registrar of the Supreme Court or clerk of the court be empowered to sign the Agreement for Sale and the Instrument of Transfer in the event that either party refuses to sign them, within so many days of them being delivered to them for this purpose. This will ensure that the transaction is completed if one party, despite the orders of the court, decides to dig in their heels and frustrate the process, so that you do not have to go back and apply for further orders.

If your friend left their home after the beginning of April 2006, then her application should be made under the Property Rights of Spouses Act. If she left the family home many moons ago, then the Act will not apply to her application. If they are tenants-in-common, strictly speaking, as they would then hold the respective 50 per cent interests separately, your friend could sell her share despite whatever he says and feels. She would then, of course, have to find a purchaser who is prepared to buy and have her share with a co-owner who obviously would not welcome or agree to the transaction.

So, despite the strict legal position of holding and being in control of her own share, if they hold the property as tenants-in-common, the best thing to do is to get the court to order the sale and the other orders which I have mentioned.

If they hold the property jointly, then they do not have separate right and control over their respective 50 per cent. They each have rights over the entire property until the joint interests are severed. So if they are joint owners, then the order for the partition of the interests must be made as well as the others which I stated above.

So, as your friend’s erstwhile partner does not want to buy her interest and he has not agreed that the whole be sold and she cannot buy him out, she can only obtain her share in the property and then move on with her life, by applying to the court for the requisite orders which will enable her to do so. She must be businesslike about this and act and get her share.

Margarette May Macaulay is an attorney-at-law and a women’s and children’s rights advocate. Send questions and comments via email to allwoman@jamaicaobserver.com or fax to 968-2025. We regret we cannot supply personal answers.