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Legal Scoop | Who owns non-matrimonial property?

Published:Sunday | April 28, 2019 | 12:00 AMShena Stubbs-Gibson/Contributor

There is legislation in Jamaica that speaks to the property rights of parties who have been married or were in a common-law relationship (Property Rights of Spouses Act). There is, however, no legislation that speaks to the property rights of persons who were involved in an intimate relationship that has since soured.

As such, the recently decided case of Horace Boswell v Jennifer Johnson (the Boswell case) in the Supreme Court of Jamaica is very instructive.

In the Boswell case, the claimants, Horace Boswell and Jennifer Johnson, while they were involved in an intimate relationship, had purchased property in St Ann (the property) in 2004 in their joint names as tenants in common in equal share.

Mr Boswell had solely provided the required 10 per cent deposit of $800,000 on the $8 million purchase price, while the balance purchase price had been financed by a mortgage of $1.2 million from NHT and $6 million from Jamaica National Building Society. The parties never got married and the relationship ended in 2012.

Before the court, there were conflicting statements from the parties as to whether there had been an agreement between them at the time of the purchase of the property that Ms Johnson’s name was only being placed on the title for convenience, not to give her a share.

In light of the conflicting statements, the Supreme Court looked at the evidence of the conduct of the parties before it to determine which statement was more plausible.

JOINT OWNERSHIP

It was Mr Boswell’s contention that it was never his intention to purchase the property jointly with Ms Johnson, as he had intended to use same for a bed and breakfast and for his accommodation when he was in Jamaica. He said that he had communicated his intentions to Ms Johnson from the outset.

But Ms Johnson denied Mr Boswell’s account. Her account was that it had always been their intention that she would have shared equally in the property. Having considered all the evidence before it on the intention of the parties regarding joint ownership of the property, at the outset, Her Ladyship Justice A. Nembhard (Ag) concluded that it had been the intention of the parties that the property was to have been purchased jointly.

Among other considerations, the Supreme Court took note of the fact that Mr Boswell introduced the assertion regarding usage for bed and breakfast and accommodation for the first time on cross-examination, and it had not been mentioned before in his original witness statements. The court also took note of the fact that it had been accepted by both parties that it was Ms Johnson who had first identified the property in question and brought it to the attention of Mr Boswell.

Having established that Ms Johnson was to be regarded as having an interest in the property, the Supreme Court then went on to look at the size of the interest she was to be awarded in the property.

SHARE OF PROPERTY

In assessing who owned what share of the property, the Supreme Court paid particular attention to the differing contribution of each party to the initial purchase, as well as to the subsequent mortgage payments. From evidence led, the court accepted that the purchase monies to acquire the property had been secured through:

- Mr Boswell solely paying the required deposit of $800,000.

- $1.2 million (15 per cent) being obtained by Ms Johnson by way of mortgage.

- $6 million being obtained from Jamaica National Building Society, also by way of mortgage.

The court further accepted evidence led that there had been an agreement between the two that Mr Boswell was to pay $53,000 monthly towards the monthly mortgage, while Ms Johnson was to pay $27,000. This disparity in the amount of the monthly contribution to the mortgage, as well as the fact that Mr Boswell solely paid the deposit was, “not indicative”, according to the Supreme Court, “of an agreement between the parties that each was entitled to an equal share in the subject property”.

Miss Johnson’s whole course of conduct in respect of the property, the court concluded, indicated that she had some interest in the subject property, but not sufficient to demonstrate that she was equally entitled with Mr Boswell.

In the absence of any compelling evidence by the end of their relationship that the intention was to share the property equally, the court, therefore, went on to order that Mr Boswell was, in fact, entitled to an 80 per cent interest in the property and Ms Johnson to only 20 per cent.

Further, Ms Johnson had been renting the property over the years without accounting to Mr Boswell for any share of same, and she was ordered to share the revenue from said rental in the proportion of ownership determined by the court.

The case reaffirms the principle that ownership of property is not just about what is in black and white. Our courts can, and when moved to do so, will – in appropriate cases – go behind the written word to determine differing shares than indicated on a title.

The problem is that too many persons stop at the written word and do not invoke the court’s inherent jurisdiction. Invoke away; you may be surprised at the outcome.

- Shena Stubbs-Gibson is an attorney-at-law and a legal commentator. Email feedback to columns@gleanerjm.com and shena.stubbs@gleanerjm.com, or tweet @shenastubbs. This column is printed every other week.