Land matters

Dear Mrs Macaulay,

I’m enquiring about the legality and the requirements if my grandfather’s property should be removed from my grand-aunt’s care. It is unknown whether my grandfather left a will. He was also disabled and his sister decided to take care of him in return for his house and land. None of his children opposed this, and none took on the responsibility of taking care of their father. She also paid land taxes. My father is his second son, but his eldest son has little interest in reclaiming the land.

My father’s property is also behind my grandfather’s, and my grand-aunt decided that her land title stipulates that my father had too much land and moved the fence quite a ways in, so we lost a good portion of our land which includes fruits trees my father planted. My father has his own title for the land which he presumes is much older than the title my grand-aunt has. I also have intentions of taking back our land.

What would you suggest I do?

I cannot give you a complete answer because your letter is short of facts which have to do with more than one issue of land law. The facts you have alluded to make it clear that you and your father need to retain the services of a lawyer, well versed in real property rights and law.

You should be clear what the situation of your aunt and your grandfather’s property actually is. It is unclear from your letter whether she is still taking care of the property, and personally paying the taxes, or paying them on your grandfather’s behalf. It seems that you do not really know whether he died testate, that is that he left a will, or intestate. In either case, no one should interfere with the ownership of any part of his property without making applications to the court, and if he died testate, for his will to be probated. If he died intestate, an application for Letters of Administration must be made by a member of his family as agreed by all or a majority of them. Upon the grant of probate or Letters of Administration, the executor or executrix or the administrator or administratrix would then have the legal authority to take in and deal and distribute the property to the persons named as beneficiaries.

What you want to do must be done legally. Land property matters can be very, very complex and no property interest can pass from one person to another without a memorandum in writing. Your father must file his claim against your grand-aunt in court and he must do so within the time such actions must be filed.

If your grand-aunt had no memorandum in writing signed by your grandfather giving his property to her, then she should not have been able to get a title for the property, and if it was a fraudulent/wrongful act, her title could be cancelled. The only other way I can think of her obtaining a legal title, is if she claimed and proved that she is legally entitled to his property by her adverse possession of it for 12 years before she applied for the title; and she may rely on her payment of property taxes over the requisite period of time to assist her claim of adverse possession. She cannot, however, use her caretaking years to count towards her adverse possession period.

I cannot say anymore about this, but repeat that you and your father need a lawyer. Your lawyer will assist you to get your father’s portion of land which you say your grand-aunt wrongly encroached upon, and your grand-aunt ought to have had something in writing from your grandfather, properly signed by him, about any arrangement she says they had that the land would be hers after his death. If she does not have that, this is also something for which you need the services of a lawyer who knows and practices land matters, as she may have breached the law in taking the property for herself.

I hope you and your father will act as quickly as you can because time is important in law for all civil cases, and land cases are civil cases.

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. All responses are published. Mrs Macaulay cannot provide personal responses.

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.