Horace Boswell v Jennifer Johnson
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. 2016 HCV 00630
Mr. Hopeton Henry and Miss Kimberly Taylor for the Claimant
Miss Olivia Derrett instructed by Messrs. Oswest Senior-Smith & Co. for the Defendant
Equity - Constructive and resulting trusts — Tenants in common — Whether the claimant is entitled to a greater interest in land than that endorsed on registered title
A. Nembhard, J (AG.)
This matter concerns the property rights of the Claimant, Mr. Horace Boswell and the Defendant, Miss Jennifer Johnson, in the property located at Lot 5, White River in the parish of Saint Ann, being the land comprised in Certificate of Title registered at Volume 1172 Folio 45 of the Register Book of Titles, (“the subject property”). Mr. Boswell and Miss Johnson acquired the subject property together, which is registered in their joint names as tenants in common, in equal shares.
Mr. Boswell and Miss Johnson have an obvious interest in the determination of their respective property rights in such a valuable asset. The issue between them is, however, also a matter of general public interest. It has become an increasingly pressing social problem, as house prices increase and more and more, people are living together without getting married. The situation is complicated by the fact that there is no single, or paradigm, set of circumstances. The only feature which these cases have in common is that the problem is not solved by legislation. The legislation which enables the Court to reallocate beneficial interests in the home and other assets following a divorce does not apply to cohabiting couples.
The key to simplifying the law in this area lies in the identification of the correct starting point. Traditionally, English law has always distinguished between legal ownership in land and its beneficial ownership. The trust under which the land is held will determine the extent of each party's beneficial ownership. The cases can be broken down into those where there is a single legal ownership and those where there is joint legal ownership. The Court must decide where the onus lies if a party wishes to show that the beneficial ownership is different from the legal ownership.
In this matter the starting point would be joint beneficial ownership. In this context ‘joint beneficial ownership’ means that the shares are presumed to be divided between the beneficial owners equally. So, in a case of sole legal ownership the onus is on the party who wishes to show that he has any beneficial interest at all, and if so, what that interest is. In a case of joint legal ownership, it is on the party who wishes to show that the beneficial interests are divided other than equally.
By way of an amended Fixed Date Claim Form, dated and filed on 8 January 2018, the Claimant, Mr. Horace Boswell, seeks the following Orders against the Defendant, Miss Jennifer Johnson: -
(1) That the property located at Lot 5, White River in the parish of Saint Ann registered at Volume 1172 Folio 45 of the Register Book of Titles in the names of the Claimant and Defendant as tenants in common in equal shares be deemed as being held on constructive trust by the Defendant on behalf of the Claimant;
(2) That the Claimant is entitled to no less than 80% legal and beneficial interest in the abovementioned property;
(3) That the Court determines the proportion of the interest owned by the Claimant and the Defendant in the said property;
(4) That the said property be valued by an approved Valuator agreed upon by the Claimant and the Defendant;
(5) That in the event that a Valuator cannot be agreed upon within fourteen (14) days, then Excelsior Realty Limited be appointed as Valuator;
(6) That, upon determination of the market price of the property, the Claimant be allowed to pay the Defendant for her interest therein as determined by the Court;
(7) That the Defendant shall transfer her interest in the above mentioned property to the Claimant;
(8) That, in the alternative, the property be sold and both parties receive the percentage share as determined by this Honourable Court;
(9) That the Registrar of the Supreme Court be empowered to sign all documents necessary to effectuate the Court's Order herein in the event that either party refuses or neglects to do so by the relevant Attorney-at-Law;
(10) Such other relief as this Honourable Court may deem just;
(11) Such costs as are incidental to the proceedings.
Mr. Boswell and Miss Johnson met in 2004 and shortly thereafter an intimate relationship ensued between them. Mr. Boswell, an Electronic Technician, is a permanent resident of Canada, while Miss Johnson, an Office Administrator, is a permanent resident of Jamaica.
In the initial stages of their relationship, Mr. Boswell, on his visits to Jamaica, would stay with Miss Johnson in her leased apartment. Shortly thereafter, Mr. Boswell and Miss Johnson decided to purchase the subject property. The subject property was being sold for Eight Million Dollars ($8,000,000.00) and was financed by way of a mortgage obtained from the Jamaica National Building Society (“JNBS”) in the sum of Six Million Dollars ($6,000,000.00) and a loan obtained from the National Housing Trust (“NHT”), in the sum of One Million Two Hundred Thousand Dollars ($1,200,000.00). Mr. Boswell contributed the required deposit in the sum of Eight Hundred Thousand Dollars ($800,000.00).
The subject property is registered in the names of Mr. Boswell and Miss Johnson, as tenants in common in equal shares.
Miss Johnson effected repairs to the subject property with the financial assistance of Mr. Boswell.
A few years later, Miss Johnson leased the first floor of the subject property for the sum of Twenty-Eight Thousand Dollars ($28,000.00), per month. Miss Johnson subsequently used the proceeds of the rent to assist in paying her share of the mortgage.
Mr. Boswell contends that, although the subject property is registered in the names of himself and Miss Johnson, as tenants in common in equal shares, he merely caused her name to be added to the Certificate of Title “for the reason that he loved and trusted her and believed that out of convenience it was necessary for such addition to be made as he does not reside in Jamaica.”
Mr. Boswell contends further that there was no mutual intention between himself and Miss Johnson that they should own the subject property jointly. Rather, the subject property was purchased with the primary intention of providing him [Mr. Boswell] with a place stay on those occasions when he visited Jamaica.
Mr. Boswell asserts that Miss Johnson was merely allowed to occupy the subject property as they were in a relationship and that he thought it best “for safety and security reasons to have someone occupy the property.” During the trial of the matter, Mr. Boswell testified that he intended to use the subject property as a bed and breakfast and that this intention was communicated to Miss Johnson.
Mr. Boswell stated that he sent Miss Johnson money, via Western Union, which she was to have used to make the monthly mortgage payments of between Forty-Eight Thousand Dollars ($48,000.00) and Fifty-Five Thousand Dollars ($55,000.00). He did this until June of 2014, when he was informed by JNBS that the mortgage was in arrears.
Mr. Boswell denied that Miss Johnson provided any NHT contributions towards the acquisition of the subject property, as was initially agreed between them. He contends that Miss Johnson was unemployed at the time of the purchase of the subject property and that by virtue of her unemployment she would not have been able to provide any such contributions.
In addition to financing the monthly mortgage payments, Mr. Boswell asserts that he also financed the renovation and upkeep of the subject property. It is his contention that, by virtue of his providing the deposit towards the purchase of the subject property, his financing the renovations to and general upkeep of the subject property, as well as, his financing the monthly mortgage payments in respect of the subject property, the interest endorsed on the Certificate of Title in Miss Johnson's favour, is held on trust in his favour.
Furthermore, Mr. Boswell contends that Miss Johnson should be made to account for any and all income generated from the rental of the subject property and that the income so generated should be shared between them.
In response to the amended Fixed Date Claim Form, Miss Johnson contends that she is entitled to a one-half share of the legal and beneficial interest in the subject property. The gist of her case is captured and summarized as follows. Miss Johnson stated that she was always desirous of acquiring a home and strategized that she would use her NHT benefits, as well as her savings, to acquire same. She communicated this desire to Mr. Boswell, who encouraged the idea and advised her that when she found the property that she liked, he would assist her to purchase it.
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