Sherry-Ann McGregor, Contributor

McGREGGOR

Most people already know that it is important to safeguard their property against intrusion by squatters. That is to say, one must assert one's ownership, and ensure that if someone has 'captured' land, swift action is taken to ensure that the squatter does not acquire legal rights.

It would not be unreasonable to assume that if one of two joint owners of property resides on that property that the interest of the co-owner would be protected. But, is this always the case?

What would happen if one of the two joint owners asserts ownership of the entire property to the exclusion of the co-owner? Can one of two owners of property lose his or her interest in that property to his or her co-owner?

Rights as owner

The case of Wills v Wills, which was decided in the Privy Council in 2003, answers these questions. Based on the ruling in that case, one of two joint owners of property effectively abandoned her entitlement to an interest in the property by not asserting her rights as owner.

The facts of that case are quite interesting. Property was owned by George and Elma as joint tenants. (Based on that type of ownership, the survivor of the two joint tenants would own the entire property.) After more than 30 years of marriage, Elma migrated to the United States and visited Jamaica very infrequently. They eventually got divorced in 1985 and George married Myra in 1986.

Even before George and Myra got married, they had been living together on the property which he owned with Elma. George and Myra managed all the affairs related to the property to the exclusion of Elma. In fact, Elma's last visit to the property was in 1976. At that time, she had no possession there, except for her wedding ring, and Myra was already living there.

Entitlement

George eventually died in 1992 and Elma returned to Jamaica to claim the property, since she was the surviving joint tenant, and would ordinarily be entitled to the whole property. The Supreme Court and Court of Appeal found that Elma was entitled to the property. However, the Privy Council reversed that ruling and held that Elma had no rights to the property because she had been totally excluded from it for a period in excess of 12 years. Elma was effectively dispossessed and Myra was entitled to the entire property.

Legal consequences

If, as stated by the Privy Council, "a Jamaican living 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 effect of the decision is that Jamaicans who usually reside overseas for economic reasons are well advised to retain close connections with their property in Jamaica. It is also important to ensure that rights of ownership are displayed during visits to Jamaica.

Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@ yahoo.com.