In Jamaica, property laws are entrenched in the Constitution. and the various other legislation such as the Registration of Titles Act or RTA, The Property Rights and Spouses Act, the Land Acquisition Act, and the Registration of (Strata Titles) Act.

                                Owner’s Rights

According to the Constitution, “no property of any description shall be compulsorily taken possession of and no interest in or right over property of any description shall be compulsorily acquired except by or under the provisions of a law …” This means that it is unlawful to capture or take possession of land without the permission of the owner and this also includes land that belongs to the State. The laws in Jamaica, however, make provision for persons who have been living and taking care of a property over a period of time, even when they do not have the consent of the owner. Such a person can make an application for adverse possession if the criteria are met for adverse possession.

As the owner of the land, you have the right to full use and enjoyment of your property, however, you also have the responsibility to ensure that the property is safe for visitors and guests. You can become liable for damages if someone is injured on your property.

Limited Rights of Property Owners

Although as the owner of the property you have the right to enjoyment of your property without interference, there are cases where your rights may be taken away for example:

1. In cases where you owe property taxes
2. In cases where you are owing maintenance fees for strata property.
3. If the property is required for the purpose of any law;
4. If your property is being acquired by a mortgagee for an outstanding mortgage or breach of contract
5. If you are of unsound mind and the court determines that another person or body should oversee your affairs.

If you find yourself in a situation where you are unsure of your rights and responsibilities as a property owner, do not hesitate to contact one of our property lawyers, we will be happy to assist.

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When two or more persons are buying a property together, a very important decision must be made by them as to the type of co-ownership they wish to put in place. There are two main ways in which a property can be owned by two or more people, and it is vital that you understand the differences before making a choice; these are – Joint Tenancy and Tenancy in Common.

Joint Tenancy

Property lawyers in Jamaica will tell you that Joint tenancy means that each joint owner owns the whole of the property. The most important characteristic or consequence of the joint tenancy is the right of survivorship, whereby when one joint tenant dies, his interest in the property effectively disappears. No part of the property can be transferred to anyone else under the deceased’s will nor under the rules of intestacy (if no will exists). The surviving joint tenant is left automatically owning the whole of the property. He may avoid this result by severing his joint tenancy during his lifetime and converting himself into a tenant in common with a distinct share, which can pass under his will or intestacy.

In the event of a sale during the joint tenants’ lifetimes, the general rule is that they will be entitled to equal shares of the net sale proceeds, even if one has made a greater contribution. However, there are exceptions to this general rule, which may arise in divorce proceedings and can also be imposed by the court on the contentious separation of long- term partners.           

Example: Jacinta and Oliver owned their home as joint tenants. This means they both owned 100% of the home. Oliver died last week. This means the property has now passed to Jacinta, and she is now the only owner of the property.

Elements

For a joint tenancy to exist, the four ‘unities’ must be present. They are unity of possession; unity of interest; unity of title and unity of time.

Unity of Possession

This means that each joint tenant is entitled to physical possession of the whole of the land. Therefore, no joint tenant may take possession of any portion of the land for himself.

Unity of Interest

Each joint tenant’s interest in the property must be of the same extent, nature, and duration, since it would be inconsistent with the nature of a joint tenancy for the tenants to have different interests. Thus, for instance, both must be freeholders or both leaseholders, and both must be entitled in possession or both in the remainder.

Unity of Title

This means that the joint tenants must have derived their titles from the same document (for instance, from the same will or conveyance), or where they claim the title by adverse possession, they must have taken possession simultaneously.

Unity of Time

The interest of each tenant must vest at the same time.

          Earlier, it was mentioned that a joint tenant may avoid the consequence of the right to survivorship by severing his joint tenancy. A joint tenancy can be broken if a joint tenant transfers or sells his interest to another person, thus changing the ownership arrangement to a tenancy in common for all parties. 

Tenancy in Common

             Property owned by tenants in common is owned jointly but each tenant in common owns a specific share of the value of the property. There is no right of survivorship, thus each tenant in common can deal with their share independently. For example, on death, their share passes to whoever is entitled under the deceased’s will or by virtue of the operation of the rules of intestacy (where the deceased did not leave a will). A tenancy in common usually arises where the property is granted to two or more persons with words of severance, such as ‘in equal shares’, ‘equally’, ‘shares respectively’, and ‘to be divided amongst.

A tenancy in common can be broken if one of the following occurs:

• One or more co-tenants buy out the others
• The property is sold and the proceeds distributed among the owners
• A partition action is filed, which allows an heir to sell his or her stake. At this point, former tenants in common can choose to enter into a joint tenancy via written instrument if they so desire.

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Obviously purchasing a property that has not yet been developed, is way more complex than purchasing a completed property. Therefore it is highly recommended to seek the advice of a real estate attorney to assist with this decision. Your real estate lawyer will advise you based on the factors below.

The Reputation of the developer

Your property lawyer should know that the most important factor when considering purchasing pre-constructed real estate is the reputation of the developers. Too many people enter into contracts for the purchase of homes with so-called developers only to find themselves in court suing for their deposit because the developer failed to deliver and in more extreme cases the developer has completely absconded with their deposits. Your real estate lawyer should check to ensure that the developer is registered under the Real Estate (Dealers and Developers) Act? Every developer who proposes to carry out a development scheme within the meaning of the Act and section 36 is re required to register with the Real Estate Board as a developer. Failure to do is an offense under the act which gives rise to criminal liability. Conducting business with an unlicensed developer will leave you without the protection offered to purchasers under the Act.

Examine the Model Home and Construction Plan

The construction agreement will make reference to the building plan. The developers will propose to construct the buyer’s unit in line with the construction plans. It is therefore important to examine the construction plan.

Completion Time

The real estate attorney will take into account the proposed completion date for construction. Sometimes these contracts do not have a proposed completion date but a good real estate attorney will negotiate for a completion date to be included in the contract taking pf course into account delays due to weather conditions, civil unrest, etc.

Forfeiture Cluse

In any agreement pertaining to the purchase of real estate, your real estate attorney should always be looking out for a forfeiture clause. This clause usually provides that in the event that the purchaser fails to complete the sale, the purchaser would lose his or her deposit. While a purchaser under an ordinary agreement for sale can do his or her due diligence to avoid this clause taking effect. However, under an agreement for sale for construction, the developers normally have a clause in the agreement for sale that allows for the escalation of the purchase price due to an increase in the cost of materials, labor, or other factors.

• Defect Liability period

Since the property is new construction, it is not uncommon for there to be minor defects. Your attorney should negotiate to have a defect liability period for the purchaser to bring forth to the developer any defects within certain days after the purchaser occupies the property. A reasonable time would be one year. These factors are not exhaustive and are just a few considerations

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Executor Dies before the Obtaining A grant of Probate or dies before the Testator  

Where the executor dies prior to obtaining a grant of probate or simply before the person who makes the will, this will not affect the administration of the estate of the deceased person if there is another executor named in the will who is still alive. The surviving executor will simply account for the absence of the deceased executor by stating that the said executor is deceased and exhibiting the death certificate of the deceased executor. In the event that all the executor or executors predeceased the testator or died before obtaining a grant of probate, one of the beneficiaries under the will may make an application for a Letters of Administration with Wills Annexed. The beneficiary may do so and prove that the executor or executors died before taking probate by exhibiting a copy of the death copy of the executors. Letters of administration can also be applied for by a representative of the deceased executor.  

Executor dies after obtaining the grant of probate

The other question is what if the executor dies after obtaining a grant of probate but before actually wining up the estate of the deceased. If the executor(s) under the will dies after the testator and after probate but before the actual winding up of the estate, the first thing to ascertain whether the deceased executor left behind a will in which he appointed at least one executor. The executor of the will of the deceased executor or a relative of the deceased executor can proceed to apply for a letters of administration with will Annexed.

The executor appointed under that deceased executor’s will then has the authority to complete the administration of the estate through what is known as the ‘chain of representation’. Similarly, where the executor dies without leaving a will or appointing an executor an application can be made for a Grant of Administration in the estate.

To avoid these delays, probate lawyers in Jamaica will advise their clients to appoint more than one executors under a will.

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Divorce marks the end of a marriage and in Jamaica, this is signified by a decree absolute from the Supreme court signed by a judge. It is necessary to follow a checklist once you have decided to proceed with an application for a divorce. Most divorce lawyers in Jamaica will provide you with a checklist on the first consultation. 

The document checklist is as simple as the marriage certificate and a valid identification. The more complex checklist is whether, in the eyes of the law, you will qualify for a divorce.

Grounds for Divorce in Jamaica

It is no longer required for persons to prove fault in order to obtain a divorce in Jamaica. This is not to say that when applying for a divorce in Jamaica one doesn’t have to show adequate reason. In order for the court to grant a divorce in Jamaica, the court would have to be convinced that the marriage has been broken down irretrievably and there is no possibility of reconciliation. One way to prove this is by stating whether you and your spouse had sought counselling. However, it is not required that one proves that they have in fact received counselling. The Court will determine if the grounds are valid or not on a case by case basis.

The Separation Period for Divorce in Jamaica

One of the factors that the court considers when determining whether the marriage has broken down irretrievably is the period of separation. In order to obtain a divorce in Jamaica, it is required that the parties have been separated for at least a year before the filing of the divorce. The two parties usually live in separate residence and this is an indication to the court that the marriage has broken down irretrievably.

It is important to note however that in order to obtain a divorce in Jamaica, one does not have to prove physical separation. The separation may be that the parties no longer engage in the activities they would otherwise engage in as husband and wife. For instance, if they no longer sleep in the same bed, the wife no longer cooks for the husband etc. 

If the parties reconcile within the year of separation then the period of separation will start over.

Can Parties Cite Irreconcilable Differences for Divorce in Jamaica?

As stated above, Jamaica is a no-fault jurisdiction when it comes to divorce, meaning no party has to prove fault in order to be considered for a divorce. Some people like to keep their family life private especially when they have children together so some people may opt to cite irreconcilable differences as the cause for the divorce. Whilst this may sound a bit obscure considering the requirement to prove that the marriage has broken down irretrievable, other factors such as separation usually helps to substantiate this claim and so it is not uncommon to or detrimental to a divorce application in Jamaica for the party to cite irreconcilable difference as the grounds for the divorce.

Other Orders when Applying for Divorce

While some divorce is pretty straight forward, especially when there are no children or assets, others are more complicated. Once there are children under the age of 18 years, the court in Jamaica will not grant a divorce unless it is satisfied that the arrangements for the relevant children are the best they can be under the circumstance. This means that the arrangement for the children will have to be stated in the divorce paperwork, i.e, where the children attend school, their date of birth, whether they suffer from any serious issues etc.

It is therefore for possible for either party to the divorce to request that the court makes an order as to the maintenance of the children or an order that one spouse should pay maintenance to the other spouse

Spousal Support

In Jamaica, either party can seek an order of maintenance against the other during divorce proceedings. This can be done under the Maintenance Act. The Maintenance Act established in 2005, provides that each spouse has an obligation to provide support depending on the needs of the other person. This application of support can also occur within twelve months of the end of the divorce.

Divorce in Jamaica Checklist

• How long have you been married?

Generally, you must have been married for at least two years before you can petition for divorce. However, you may apply to the court for permission to file a petition before two years have elapsed if there are special circumstances that justify the making of such an order. 

• How long have you been separated?

You must be separated from your wife or husband for at least 12 months before you can petition for divorce. That 12-month period of separation could have occurred within the first year of marriage, and a couple may be separated while living under the same roof.

• What is the reason for your separation?

You no longer need to prove that one party to the marriage caused the breakdown of the marriage through infidelity, cruelty, desertion, etc. However, you must satisfy the court that the marriage has broken down irretrievably and that there is no likelihood that cohabitation will be resumed. In establishing these facts, you will be required to briefly state the reason for the separation.

• Have you attempted counselling and reconciliation?

The court is entitled to ask whether the parties attended counselling and attempted reconciliation; so it is advisable to explore these matters before filing the petition for divorce. 

• Do you have children?

If you have children who are under 18 or 21 years old

and attending a tertiary institution, the court will only grant the divorce if the judge is satisfied that adequate arrangements are in place for their care. Questions will arise regarding living accommodations, school arrangements and maintenance when this assessment is being made. 

• Are you entitled to file your petition in the Jamaican court?

The Jamaican Supreme Court will only entertain petitions where either party is a Jamaican national, domiciled in Jamaica or ordinarily resident in Jamaica for at least 12 months immediately preceding the presentation of the petition. 

• Do you have an original Marriage Certificate?

The original marriage certificate will need to be presented to the Court when the application is being made for the Decree Nisi. 

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The phrase “Inter Vivos” is Latin for “between living persons.” An inter vivos gift is one that is given during the lifetime of the donor that is, while the donor is still alive. These gifts include personal property and real estate. This article will focus on real estate.

Pros of Transferring Property By Gift

One of the main pros of transfers by gift is that it is more economical compared to the cost to probate a will or apply for letters of administration. Most property lawyer will tell you that if you intend to transfer a property that you own solely to a child or close relative, one option to do so is to add that person to your will as a joint tenant, that way upon your death the beneficiary simply would need to note the death of the to remove the deceased. This is a faster and more economical route than applying for probate or administration of an estate.

An application for probate or letters of administration can costs up to 10% of the value of the estate in legal fees ALONE and an additional 1.5% of the estate for transfer tax whereas an application to note death may costs as low as $120,000.00 in total.

A donor may also elect to transfer the entire property to a beneficiary during his lifetime (inter vivo gift). This can be done by a transfer of gift for love and affection. This too is very fast and economical compare to applying for probate or grant of administration.

Cons of Transfering Property by Gift 

Your property lawyer should explore the pros and cons of real inter vivos transfer of land with you. As seen above you may elect to add your beneficiary’s name to your title as joint tenants or you may move ownership completely from yourself to them. The disadvantage of this is, unlike a will it is very difficult to change. Once you add someone else to your title, you create an automatic legal interest for them. This means that no further change can occur as to ownership of the said property without the beneficiary’s consent. So unlike a will where the testator can completely cut someone out later down the road, you cannot undo the effects of a transfer by gift. Matters are made worse if the entire interest in the land is passed over to a beneficiary and you wish to change your mind. In such case, the beneficiary is the sole legal owner and only he/she alone can effect change on the title.

Do I Need a Property Lawyer to Gift Property?

Consulting with a skilled and knowledgeable property lawyer can ensure that gifts made during your lifetime are correctly done. An experienced property lawyer can help you better understand estate and gift taxes, and help you draft any necessary documents for the transfer of property or assets. A property lawyer can also ensure the best option for you, base your intentions.

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Retain a Divorce Lawyer in Jamaica

The first step in pursuing a divorce application is finding an experienced divorce lawyer in Jamaica. Experience is vital when it comes to divorce proceedings for several reasons.  A slight error, even in relation to formatting can potentially add an unnecessary two months to your waiting time.

Moreover, since the average turnaround time for a divorce in Jamaica is about 6 months, it is important that you have a responsive divorce lawyer, ie a divorce lawyer who responds to your emails and inquires. Anything else, and the process will be a nightmare for you- nobody likes not knowing.

Have your Documents in Order

Uncontested divorces are pretty straight forward. The only delay is the court. The last person you want to get in the way of a quick divorce is you. Firms like FTCW Law have a system in place to handle uncontested divorces. Once our client expresses an interest in filing for a divorce, with no need for maintenance, child support and or custody a form is emailed to you for you to complete. You will be required to complete the form and email it back to us with a scanned copy of your marriage certificate. All the details that we need to make the application will be taken from the completed form and marriage certificate. It is as easy as it sounds.

Know your spouse

This is a rather funny suggestion, but it is important. You will need to know basic details such as where your spouse lives, his or her date and place of birth and the name and date of birth of any children you have together. This is important. Absence of this information can be tedious for all parties involved and undoubtedly result in unnecessary delays.

Act Promptly

Sometimes delays are due to the fault of the client himself. Sometimes a client simply does not act promptly. If for instance there is a document that your divorce lawyer needs you to sign, it is within your best interest to have it signed as quickly as possible. The reason for this is that the Supreme court in Jamaica goes on holidays. Yes, you’ve read right, judges take breaks and if for instance your application is at the nisi stage and you fail to sign something within a reasonable time, you may have to wait an additional month or two to hear back from the court.

Follow Instructions from your divorce lawyer

A divorce lawyer’s biggest frustration is a client who doesn’t take advice and a client’s biggest frustration is a divorce lawyer who doesn’t take instructions. Talk with your divorce lawyer during your first interview. In fact, some divorce law firms are willing to have free telephone consultations with potential clients prior to signing a retainer.

Overall, a good lawyer-client relationship will definitely help. Always remember that you are the client and do not be afraid to voice your expectations to your divorce lawyer. An honest one will tell you whether they can meet your expectations or whether your expectations are simply not practical.

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We are all familiar with the phrase “reading is fundamental”, but in real estate transactions: reading is absolutely fundamental.  As a real estate lawyer, whenever I am reading an agreement for sale, there are a few things that I am looking for, one of which is a forfeiture clause.

A forfeiture clause would typically read as follows:

Time shall be of the essence of this Agreement with respect to all payments to be made by the Purchaser hereunder and in the event of failure by the Purchaser to punctually pay any sum due herein (whether demanded or not), save for a delay associated with the assessment of impost payable upon this Agreement for Sale by Tax Administration Jamaica, then the Vendors may (but shall not be obliged to) rescind this agreement for sale and forfeit ten percentum (10%) of the Sale Price; remit to the Purchaser the difference in purchase monies if any.

As you can see, the issue with this clause is that it gives the vendor the discretion to forfeit the purchaser’s deposit if the purchaser is unable to complete within the deadline stipulated. Such a clause is particularly risky in mortgage transactions. Why? Because the successful completion of the sale rests upon the granting of a mortgage and unfortunately a pre-approval does not always guarantee actual mortgage approval.

Negotiating Forfeiture Clauses

As a real estate lawyer, I always start off by requesting that the said clause be removed. The reason for this is that time is not automatically of the essence for completing a contract. Although the contract would have a completion date, a failure to meet the deadline would not automatically result in a breach of contract and the vendor does not have an automatic right to rescind without a notice. Having the clause removed will force the vendor to serve a notice on the purchaser to complete the contract and the purchaser would have an opportunity to rescind the contract and be refunded the deposit.

However, sometimes the vendor is unwilling to have the clause remove for his own protection. In that event, a request for a 21days notice is usually accepted. The real estate lawyer would ask for the vendor’s lawyer to give a 21 days’ notice for payment of the balance of the purchase money before recision and forfeiture can take place. The notice will serve as a reminder to the purchaser and his real estate attorney that the time for completion has passed and they have the option to rescind the contract before the expiration of the additional 21 days. The rescission of the contract before the 21 days will mean that the deposit paid will be refunded back to the purchaser in full.

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What this article will seek to do is to inform its readers on the easiest and fastest way to get a divorce in Jamaica. It must be noted however that ultimately the length of time a divorce will take will be heavily influenced by the number of divorce matters that are before the court at the time of the application. However, through experience, we have seen some methods that have helped our clients’ to have their divorce application processed faster and cheaper.

Get your Documents in Order

This is one of the small things that can save you a ton of time and some money. In order to start your application, your family lawyer will need your original marriage certificate. Make sure you have this before even consulting your family lawyer for a divorce. In the event that you do not have a copy of your marriage certificate, your family lawyer would have to apply for one and you will be billed not just for the cost of the marriage, but the additional administrative fees that come with applying for the marriage certificate.

Gather All Facts

As family lawyers, we appreciate a client who is well prepared for our first meeting. A well prepare client is one that has written down all the questions he wants to ask and answers to all the questions that he or she thinks the lawyer might ask. Usually, in order to draft the application, the following information is required.

1. Date of birth of your husband/wife
2. Place of birth of your husband/wife
3. The date of birth of all the children you have together
4. Schools your children are attending
5. The name, address and date of birth of any children who were born during the marriage with someone else apart from your spouse.
6. The name and date of birth of any child that your husband/ wife have with another person outside of the marriage.
7. Who will have custody of the children
8. Whether the children have any serious health problems
9. The amount of money you contribute towards the maintenance of the child and how much your husband/ wife contributes towards the maintenance of the child
10. Your monthly income and your husband/ wife monthly income.
11. The address of your husband/ wife, this is crucial as the Petition and other divorce documents must be served on the spouse.

Select Someone to Serve The Divorce Document

For the divorce application to be heard, the Petition, after being signed and sealed by the Registrar must be served on the Respondent i.e the other party to the divorce. The issue is that the Petitioner (the party applying for the divorce) cannot be the one to serve the document. As a result, the petitioner can opt to either use the service of a process server or a relative or friend to serve the documents. Process servers can charge up to $10,000.00 to serve a document so it is best to get the assistance of a family member or friend to serve the documents.

Select a Competent Family Lawyer

Select a competent Family Lawyer We cannot stress enough the importance of a competent family lawyer. A  divorce application with lots of errors will be rejected by the registrar and your family lawyer will have to amend the document and have you come into their office several times to resign amended documents.

An uncontested divorce is a paper application and so a lot of paperwork is involved. A lawyer who does not pay attention to detail is likely to submit an application riddled with errors. For this reason, it is important that when you carefully select your divorce attorney.

Divorce for anyone can be stressful, but if you follow the guidelines given there is a good chance that you will get a fast and affordable divorce.

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Meeting with your Real Estate Lawyer for Advice on Inter vivos Gift

Before applying to transfer real estate property by way of gift it is important to seek the advice a real estate lawyer. The real estate lawyer will be able to guide you towards the most suitable solution for your individual case. You must be sure to inform your real estate lawyer as to any dispute relating to the property as this may influence his advice to you. The real estate lawyer will take instructions from you and draft the documents accordingly.

The Application

The application for the transfer of property will start with the real estate lawyer drafting a statutory declaration. This statutory declaration will declare the value of the property. The document should then go to the Stamp Office for assessment. The assessor at the stamp office may not accept the value declared by you in the statutory declaration and in that case will do their own independent valuation.

The Assessment

Once assessed, stamp duty and transfer tax will become payable to the stamp office. The stamp duty is usually $40.00. As of April 1, 2019 transfer tax, which was previously assessed at a rate of 5% has now been reduced to2% of the market value of the property i.e. either the declared value or the assessed value. Transfer tax is only payable on the portion that is being transferred. Therefore, if a donor wants to transfer 1/2 of his interest to a beneficiary, his transfer tax would be only 1/2 of the 2% of the market value of the property since he is only parting with half interest.

The advantage of creating an inter vivos gift in a real estate is that the donor does not have to surrender complete ownership of the property during his lifetime. Joint tenancy gives the donor the power to use the property throughout his lifetime and after his death, the entire property is transferred to the beneficiary through the doctrine of survivorship almost automatically.

Once the stamp duty and transfer tax are paid the Transfer instrument will be completed filed and crossed stamped. A transfer tax certificate will be issued which should accompany the transfer instrument when lodged at the Titles Office.

Lodging Documents at Titles Office

Once it has been stamped, the instrument of transfer, as well as the registered title, should be taken to the Titles Office section of the National Land Agency, where the ownership changes will be registered. The cost to register transfer by way of gift is $5,000.00. A cover letter should accompany the application, usually prepared by the real estate lawyer conducting the registration.

Once lodged, the documents would be ready within 5 working days after submission.

DISCLAIMER:
The contents of this article are for informational purposes only. It must not be relied upon as an alternative to legal advice from your own attorney

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