Land Problems

Dear Mrs Macaulay,

Thirty years ago I gave my father money to buy some land in Jamaica. I reside in the UK. He bought the land, and on the indenture, both of our names were added as the purchasers.

I proceeded to build a house on the land for him to live in.

My father was unaware that the indenture was not the actual deed and was not aware that he would need to register the land, but I was under the impression that the papers were complete.

Now my father is fully senile and cannot manage his affairs at all. I obtained the papers only to find out that it was just the indenture.

I am looking to sell the land and am aware that I need to register the land to get the title, but I am not sure how it should be stipulated.

Would it be classed as joint tenancy or tenants in common or is there another format?

Or if I were to wait until my father dies, how can it be registered? Would I still need to put his name on the deed?

The indenture does not state the words, ”tenancy in common” or ”joint tenancy” at all; all it states is both of our names as the purchasers and it also states “to hold the same unto their heirs and successors”.

I also have brothers and sisters who did not pay anything towards the land or the house, which is why my father only put his name and mine on the indenture.

Would my brothers and sisters be able to legally inherit any part of my land?

Since your father no longer possesses the ability to understand and conduct his affairs, you will have to make an application to the court, and I suggest the Supreme Court, where whichever attorney-at-law is representing you can ensure that the matter is assigned sufficient time to be properly considered. The complication is that because of your father’s mental state, you may have to find someone who was close enough to him and knew and knows about his affairs and all the facts about how the property was purchased and the house built, to agree to act as his Next Friend in the course of the proceedings. This person would have to attest about how he or she came to know all about your father’s affairs and about the property, and who does not, and would not have any interest in anything your father is or may be entitled to, and who would act fairly in the matter on your father’s behalf.

This would, on the face of it, exclude you and any of your siblings.

If you find such a person, then you can file your claim with your father named as defendant but with the Next Friend’s name as such acting for him. Or you can also have added to your substantive application, a further application for someone to be appointed as your father’s Next Friend, who would be empowered to act on his behalf. You can name such a person in your application, but you must explain in your affidavit in support or particulars why that person is qualified to be the Next Friend.

Your substantive claim would of course be for a declaration that you are solely entitled to all the interest in the land and for orders directing that you being so entitled can apply for a registered title in your sole name, plus consequential orders directing that your father’s Next Friend must sign all documents necessary to enable you to effect the said registration in your sole name, with or without directives to the Registrar of Titles.

The Next Friend would have to sign a transfer of your father’s apparent interest in the indenture over to you once you succeed with your applications in your claim.

I trust that you can prove that you did indeed provide the purchase monies and those for the construction of the house. I know 30 years is a long time, but this was an investment for you and so you should be able to adduce the necessary facts either with documentary support or by way of affidavits of a person or persons who knew of your provisions of the funds.

Do proceed to obtain the services of a lawyer and do your application(s) now before your father’s death, when your siblings would, with you, become his beneficiaries on what seems on the face of it to be his partial ownership of property. So you will have more defendants to deal with if they do not wish to abide by the fact that he purchased the property on your behalf. In any event, if you wait until he dies, you will still have to prove your case as I have stated above, based on your provision of all the monies and that the property was purchased by your father for you, and that his name was included in the indenture for convenience only as you were in the UK, and you allowed your father to live there as your way of providing for him as none of the others were inclined to assist him, and that he took care of it for you.

So good luck and move as quickly as you can.

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.