By Barbara Gayle, Staff ReporterTHE UNITED Kingdom Privy Council has handed down an unusual ruling which will result in a spouse losing the matrimonial home owned in joint tenancy, if the home is deemed to have been abandoned for at least 12 years.
Attorney-at-law Raphael Codlin, who represented a wife who was dispossessed of the matrimonial home based on the Privy Council's ruling this week, is calling on Parliament to amend the Limitations of Actions Act of Jamaica because "serious injury will be done to joint tenants if this judgment is allowed to stand".
Mr. Codlin, who had only appeared at the Privy Council hearing, told The Gleaner yesterday that there were many cases in which husbands or wives had to leave the property they owned as joint tenants for various reasons. He said the case was really opening the floodgates for joint tenants to be dispossessed of their share in the properties.
LOST POSSESSION
Elma Roselina Wills, a Jamaican woman living in the United States, lost possession of two properties she owned as joint tenants with her husband Alexander George Wills, (now deceased) as a result of the Privy Council's ruling. The Privy Council found that she abandoned the matrimonial home from 1976 and therefore her husband, the co-owner, had acquired title by possession from her under section 3 of the Limitations of Actions Act. The relevant section of the Act states that right of entry, or bringing an action to recover land or rent was limited to 12 years.
The properties are the matrimonial home at 84 Sunrise Crescent, St. Andrew, which the couple had acquired in 1966 and a property at 6 Newleigh Avenue, St. Andrew which they owned as joint tenants since December 1957. They were married in 1935 and in 1964 Elma went to stay with her daughter in the USA. She subsequently returned to Jamaica and returned to the USA in 1967. She visited Jamaica in 1991 but did not visit the matrimonial property where Mr. Wills was living with his wife Myra.
Mr. Wills divorced her in 1985 and got married in January 1986. After Mr. Wills died intestate (without making a will) in December 1992 at age 82, Elma Wills attended the funeral and gave notice to the tenants at the properties to pay rent to her in the future.
Myra Wills brought an originating summons in the Supreme Court in February 1993 seeking a grant of letters of administration and her entitlement to the properties. The Supreme Court and the Court of Appeal ruled that the property belonged to Elma and her former husband had acknowledged her title to the properties because in 1987 he offered her $25,000 for her share in the properties.
The Privy Council said that Elma "never positively challenged Myra's evidence that none of her possession (except her abandoned wedding ring) was to be found at Sunrise Crescent after 1971." She consulted lawyers in 1984 but the Privy Council said she did not take action to have the properties sold or rearrange their ownership by an exchange of beneficial interest or even obtain a proper written acknowledgement of her title. Their Lordships do not therefore see the outcome of this appeal as likely to cause trouble for the large number of Jamaican citizens who work overseas and contribute to their families' welfare and the island's economy. Most of them will come home on a fairly regular basis, will retain the bulk of their possessions at home, and will not (on coming home) be treated as guests in their own houses. But if (as must sometimes happen) a Jamaican working overseas forms new attachments and starts a new life, and entirely abandons the former matrimonial home, he or she will (within the ample period of 12 years) have to consider the legal consequences of that choice," the Privy Council ruled.
The Privy Council then declared that Myra, in the capacity of her late husband's personal representative, was solely and exclusively entitled to the two properties. The ruling means that since Mr. Wills died intestate only Myra Wills and his three children with Elma can benefit from the properties.
