Sun | Aug 20, 2017

Laws of Eve | Court declines to hear claim about property situated in Ja

Published:Monday | July 11, 2016 | 7:00 AM

Some persons who own property in Jamaica have either never lived here or have migrated after acquiring property to live and work in other countries. Where those properties become the subject of a legal dispute between the owners of those properties, questions often arise as to whether the issue should be dealt with in a court in Jamaica or in a court in the country in which the owners reside.

That was the issue in the case of Miller v Miller [2015] JMSC Civ 18, about which I wrote several months ago, and the issue arose again in the case of Kellyman v Kellyman[2016] JMSC Civ 47. As cited in Kellyman's case, the learned judge in Miller drew "... a distinction ... between dispute over title to the land and enforcement of contract, trust, or any other personal obligation ... [and said that] the correct legal analysis is that where the claim involves title to land the court of the country where the land is located is the better place for the matter to be heard. One of the main reasons for this is that the foreign court may not be able to enforce its judgment in respect of land located outside the country". It was noted that there are exceptions to that general rule.

In Kellyman's case, the court was not being asked to determine whether a judgment made in a foreign court in respect of land in Jamaica was enforceable in Jamaica. Instead, the question was whether the Jamaican court should exercise its discretion not to hear a case or to stay proceedings about which a Jamaican property was the subject-matter.

The facts are that the Kellymans, who are Jamaican nationals, got married, had children, and lived in Florida, and, among the properties they owned, there was one situated in Jamaica. They got divorced in Florida, and the judge made an order in keeping with the terms of a marital settlement agreement they had signed. That order made provision in respect of the Jamaican property and stated that the property should be sold and the proceeds of sale shared between them.

Mrs Kellyman's complaint before the Jamaican court was that her efforts to sell the property in keeping with the terms of the order had been futile because Mr Kellyman and the third co-owner were not cooperating. Although she accepted that the property was the subject of a Florida court order, Mrs Kellyman asked the Jamaican Supreme Court to hear the claim. In response, Mr Kellyman asked the Jamaican Court to decline jurisdiction to hear the claim.

 

JURISDICTION ACCEPTED

 

Rather than declining jurisdiction, the Supreme Court ordered a stay of the Jamaican claim for the following reasons:

1. Mrs Kellyman's assertion that Mr Kellyman had frustrated her attempts to sell the property was not refuted by him and was, therefore, accepted to be true.

2. A stay would allow the parties to try to abide by the terms of their agreement or go to the Florida Court to enforce it.

3. Both parties reside in the Florida and submitted to the jurisdiction of the court in Florida.

4. Both parties signed an agreement to give effect to decisions regarding the properties they hold in Jamaica.

5. The ownership of the property and the shares the parties hold in it are not in dispute.

6. The parties have entered into a contract, which imposes personal obligations, as to how to dispose of the property.

7. The courts in Florida are better placed to deal with the personal obligations that arise under the contract and any failure to abide by its terms.

8. Mrs Kellyman could benefit from an order that was previously made in the Jamaican court for Mr Kellyman to immediately remove from the Jamaican property.

There are likely to be many other transnational property cases such as this one, and the guidance from the court seems to be clear. As a general rule, where the ownership of property situated in Jamaica is in dispute, the Jamaican court is likely to retain the jurisdiction to hear the claim, but this is subject to some exceptions.

• 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.