Thu | Aug 24, 2017

Laws of Eve | Co-owners, beware

Published:Monday | May 9, 2016 | 5:00 AM
A sign at the boundary of the idle NHT owned Unity Farm property in St Mary.

Not long ago, discussions about adverse possession focused on the prospect of a trespasser entering and remaining on land that was left unattended by the owner. Today, and at least since the Privy Council decision in Wills v Wills, there is increasing concern among co-owners that they could lose their interest in property to a co-owner.

The decision of the Supreme Court in the case of Hawkins v Hawkins McIniss [2016] JMSC Civ 14 hardly created the classic case involving an absentee co-owner, but presented a very interesting tale while reinforcing the guiding principles.

There were (potentially) three Mrs Hawkins, and Mr Hawkins passed away without leaving a will, and property that was registered in his name only. Mr Hawkins became the sole owner of the property after acquiring the interest of the first Mrs Hawkins after their divorce. The second Mrs Hawkins and Mr Hawkins eventually became co-owners of the property as joint tenants.

The third Mrs Hawkins entered the picture while wife number two was residing overseas; and she lived with him until he died. Interestingly,

however, wife number three never presented a marriage certificate to the court and could not prove that Mr Hawkins was divorced from wife number two when he allegedly married her.

Fortunately for wife number three, she did not attempt to argue that she had become the owner of the property by adverse possession. Instead, she attempted to prove that Mr Hawkins' estate became the sole owner of the property because the second Mrs Hawkins had abandoned her interest in the property for at least 12 years before his death.

Wife number two would have become the sole owner of the property after Mr Hawkins died, if his estate was unable to prove that he treated the property as being entirely his own for at least 12 years before his death without any interference from wife number two. Despite all the challenges, that is exactly what Mr Hawkins' estate was able to prove to the court. The fact that wife number two had never slept in the house and was denied access to it by Mr Hawkins when she visited Jamaica, all worked in favour of his estate, and resulted in a ruling that the entire property belonged to the estate.

The Court of Appeal's judgment in the case of Fullwood v Curchar [2015] JMCA Civ 137 was relied on by the learned judge in Hawkins' case for the clarity with which 12 guiding principles were stated. Below, I set out the first six:

(i) a person's name on a title does not mean that person cannot be dispossessed by another

(ii) co-ownership does not prevent one co-owner from dispossessing another

(iii) sections 3 and 30 of the Limitation of Actions Act effectively create circumstances that could bar a registered owner from entering or bringing any action to recover property after 12 years

(iv) usually, if property is jointly owned under a joint tenancy and one joint tenant dies, the surviving co-owner takes the whole under the rule of survivorship

(v) by virtue of Section 14 of the Limitation of Actions Act, the possession of each co-owner is separate so that one co-owner can obtain the whole title by extinguishing the title of the other co-owner

(vi) together, sections 3, 14 and 30 of the Limitation of Actions Act mean that a registered co-owner can lose the right to recover possession and a person can rely on a deceased co-owner's dispossession of the other co-owner to resist any claim for possession

The combined effect of the guiding principles is that wife number two was dispossessed by Mr Hawkins before his death. Wife number three was able to rely on Mr Hawkins' dispossession of wife number two's interest to enable the beneficiaries of Mr Hawkins' estate to benefit from the entire property.

A word to the wise is sufficient. Co-owners who are not in possession of jointly owned property need to be as cautious as sole owners of property to ensure that they are not dispossessed of their interest in property.

• Sherry Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.