Property matters

Dear Mrs Macaulay,

My mother died suddenly and left a house in Jamaica, the family home. She was married to my father and had four children with him. She was the only parent registered on the title as proprietor of the property. She was the first parent to pass away, followed by my father five years later.

My siblings, who all reside abroad, have never had an interest in this property, even prior to our mother’s passing, and it remains the same to this date. When I resided in Jamaica and after moving to the USA, I assisted my parents in paying bills and with the maintenance of the home.

It is so unfortunate that you were not able to assist your mother to complete her transfer of her entire title in her property to you before or immediately following her death. You have not stated in your letter the exact date of your mother’s death in 2006. This is very relevant because it will determine whether your mother had the legal capacity to effect the transfer of the family home, which was registered in her sole name to you, without considering that your father may have been entitled to a half interest in it and she would have been required to obtain his consent to the transfer.You see, the Property (Rights of Spouses) Act was passed and signed by the Governor General on the 10th day of March 2004, but it became operational, much later, by the notice published in the Gazette by the minister of the day appointed for it to come into effect, which was the 1st day of April 2006. So pursuant to the Act, from the 1st of April 2006, if your mother was then alive, she could not, from that date, transfer all her interest in the family home to you while your father was still alive. Additionally, also pursuant to the Act, upon your mother’s death after the appointed day, your father would have in law been entitled to a one-half share of the family home. The other half would be your mother’s estate to which you and her other beneficiaries would be entitled to share pursuant to the provisions of the Intestates’ Estates and Property Charges Act. I will not go into the proportions of the Act, as your father has since died and your siblings are not interested in the property.Firstly, you have not said that your mother and you actually signed an Instrument of Transfer of the property by her to you. In any event, if she could do so legally, such an instrument would be long stale-dated from 2006. So you will have to proceed otherwise, though it may be useful to prove that she put you in possession of it from then.Secondly, you say your siblings are not interested in the property and that you solely assisted her and your father to pay their bills and with the expenses for the maintenance of the home/property. You also say that since your mother’s death, you had the full responsibility of caring for your father and the home until he died. I trust that you have safely in hand the Certificate of Title for the property and that you have all these years been in sole possession of it and responsible for the property. This is to say, though you are abroad, that you have and still exercise all control of the property and have a caretaker there, or a tenant or tenants continuing your possession thereof. Also, that throughout the years, all the rentals or income from it have been collected by you or on your instructions by an agent on your behalf and paid over to you.A most important point is that throughout these years, not one of your siblings has ever questioned your possession of the property or indicated any interest in claiming a share of it.Your legal optionsWhat could you do to get full ownership of it? Well, you could obtain your siblings’ consent for you to obtain Letters of Administration of both your mother’s and father’s estates and thereafter, having been granted such Letters, you would be registered as the Proprietor on Transmission. You could then thereafter have your siblings sign over their interests in the property to you as sole proprietor in Fee Simple by executing a transfer to this effect. The estate duties would have to be paid plus interest thereon because Letters were not obtained within a year of your mother’s and your father’s deaths.Or, you can wait out the period of 12 years of peaceful, open and sole possession of the property and apply for the title to it to be issued in your name based on your stated possession of it, with the knowledge and consent of your siblings, and you could add your mother’s intention as is evident in her transfer of it to you.You would, of course, need the services of a lawyer to whom you must give more details of all the circumstances of the matter, who would then decide and advise you based on the provisions of the Acts I have referred to.Good luck.Best wishes and God’s blessings to you and my readers for 2016.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.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.

Since the passing of my mother in 2006, I assumed the full responsibility of caring for our father until he passed away. To date, I continue to maintain the property.

At the beginning of 2006, my mother started the process of transferring the property to me as a gift. This process was delayed due to finances and with me residing abroad.

Due to several life events, for the past eight years I was unable to take care of this unfinished matter. It’s been almost 10 years and I am fearful of what the outcome will be.

I humbly seek your assistance in directing me as to what will be required of me to complete this process, or if there are other options for me to acquire ownership of this property.

It is so unfortunate that you were not able to assist your mother to complete her transfer of her entire title in her property to you before or immediately following her death.

You have not stated in your letter the exact date of your mother’s death in 2006. This is very relevant because it will determine whether your mother had the legal capacity to effect the transfer of the family home, which was registered in her sole name to you, without considering that your father may have been entitled to a half interest in it and she would have been required to obtain his consent to the transfer.

You see, the Property (Rights of Spouses) Act was passed and signed by the Governor General on the 10th day of March 2004, but it became operational, much later, by the notice published in the Gazette by the minister of the day appointed for it to come into effect, which was the 1st day of April 2006.

So pursuant to the Act, from the 1st of April 2006, if your mother was then alive, she could not, from that date, transfer all her interest in the family home to you while your father was still alive. Additionally, also pursuant to the Act, upon your mother’s death after the appointed day, your father would have in law been entitled to a one-half share of the family home. The other half would be your mother’s estate to which you and her other beneficiaries would be entitled to share pursuant to the provisions of the Intestates’ Estates and Property Charges Act. I will not go into the proportions of the Act, as your father has since died and your siblings are not interested in the property.

Firstly, you have not said that your mother and you actually signed an Instrument of Transfer of the property by her to you. In any event, if she could do so legally, such an instrument would be long stale-dated from 2006. So you will have to proceed otherwise, though it may be useful to prove that she put you in possession of it from then.

Secondly, you say your siblings are not interested in the property and that you solely assisted her and your father to pay their bills and with the expenses for the maintenance of the home/property. You also say that since your mother’s death, you had the full responsibility of caring for your father and the home until he died.

I trust that you have safely in hand the Certificate of Title for the property and that you have all these years been in sole possession of it and responsible for the property. This is to say, though you are abroad, that you have and still exercise all control of the property and have a caretaker there, or a tenant or tenants continuing your possession thereof. Also, that throughout the years, all the rentals or income from it have been collected by you or on your instructions by an agent on your behalf and paid over to you.

A most important point is that throughout these years, not one of your siblings has ever questioned your possession of the property or indicated any interest in claiming a share of it.

Your legal options

What could you do to get full ownership of it? Well, you could obtain your siblings’ consent for you to obtain Letters of Administration of both your mother’s and father’s estates and thereafter, having been granted such Letters, you would be registered as the Proprietor on Transmission. You could then thereafter have your siblings sign over their interests in the property to you as sole proprietor in Fee Simple by executing a transfer to this effect. The estate duties would have to be paid plus interest thereon because Letters were not obtained within a year of your mother’s and your father’s deaths.

Or, you can wait out the period of 12 years of peaceful, open and sole possession of the property and apply for the title to it to be issued in your name based on your stated possession of it, with the knowledge and consent of your siblings, and you could add your mother’s intention as is evident in her transfer of it to you.

You would, of course, need the services of a lawyer to whom you must give more details of all the circumstances of the matter, who would then decide and advise you based on the provisions of the Acts I have referred to.

Good luck.

Best wishes and God’s blessings to you and my readers for 2016.

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.

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.