Legal Scoop | Abandoning interest in one’s home - The case of Dawn Davis against Delrose Gray

The Limitation Act, Section 3, provides, in summary, that no person shall have any right to sue for recovery of possession of land or for rent from the land after 12 years have passed since the first opportunity to sue.

In other words, after 12 years, you are deemed by the law to have abandoned your interest in your property (land/house) if you allow someone else to possess the said property and exercise the rights of an owner over same without your consent. This also applies to persons who are joint tenants. In other words, even where a wife and husband purchase property together as joint tenants, one can beat risk of forfeiting his/her right to possession to the other after the passage of 12 years.

In the seminal case of Wills v Wills, Justice Sykes, as he then was, ruled against the joint-tenant wife who had left the matrimonial home for more than 20 years to live abroad and later sought to assert her right to the said property, her husband having died.

The second wife of the said husband was deemed by the court to be the rightful owner even though her name was not on the title to the property and the first wife’s name was. The court concluded that the joint-tenant wife had abandoned her interest in the home in the circumstances of the particular case.

The recent case of Dawn Davis v Delrose Gray, however, offers more hope for persons living abroad while owning property in Jamaica. In this case, the applicant, Ms Davis, who, like the claimant in the Wills case, owned the matrimonial home jointly with her husband before she left to reside overseas. Fast-forward 22 years later. Ms Davis’ husband had now died and he had willed the said former matrimonial home, which Ms Davis owned jointly with him, to the woman he had been living with for years before his death.

Refusing to accept the validity of her deceased husband’s last will and testament, Ms Davis retained senior counsel Anthony Williams and Sharon Usim to obtain a declaration from the court that she was the sole and exclusive owner of the property in question. The senior counsel argued before Justice Annmarie Nembhard that albeit the seeming similarities, Ms Davis’ case was, in fact, materially different from the Wills case. They directed the court’s attention to actions taken over the years by Ms Davis, which, they argued, preserved her interest in the property and demonstrated that she did not abandon her interest.

Important Steps

Between the time Ms Davis left the property and her return to it after her husband died, she took some important steps that, no doubt, greatly assisted the court in ruling in her favour. To begin with, before Ms Davis left Jamaica in 1994, she consulted a lawyer regarding preserving her rights in the property and instructed her lawyer to lodge a caveat against the title to the property. Even though she was no longer at the house, Ms Davis’ evidence was that she continued to make her share of the mortgage payments until in December 1997, when she paid off her mortgage to the NHT.

Having completed her mortgage payment, she was advised by NHT that her husband was still owing on his share of the mortgage. She made a payment of $10,800 towards his mortgage, and by 1998, she paid it off in full.

Ms Davis also told the court that she kept abreast of the situation with the property with respect to water, electricity, and taxes payment through her contacts at these agencies.

In 2008, when she came to Jamaica, she spoke to her husband about the fact that the property was not insured, and in 2015 when she again visited Jamaica, she was advised by the tax department that the taxes were three years in arrears.

She spoke to her husband about this, but he told her that he had no money to pay the taxes. She promised to pay the taxes but told him that she could not do it until August 2, 2016. After the death of her husband in July 2016, she returned to Jamaica and paid up the taxes on the property in August 2016.

The court, having looked at the relevant authorities and considered all the evidence, ruled that Mrs Davis never abandoned the property in question and that she should be registered as the owner. Ms Gray, to whom the property had been willed, was instructed to vacate same by June 2019. This is an important case for law students, young counsel, and persons who have migrated, on how to preserve the property rights of migrated joint tenants.

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