Mahfood v Carol Lawrence and Others

• Jurisdiction: Jamaica
• Judge: Straw J
• Judgment Date: 21 October 2009
• Judgment citation (vLex): [2009] 10 JJC 2102
• Court: Supreme Court (Jamaica)
• Date: 21 October 2009
• Docket Number: CLAIM NO. HCV1378/2006

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. HCV1378/2006

BETWEEN

ANDREA MAHFOOD

CLAIMANT

AND

CAROL LAWRENCE (Executor of the Estate of Joseph Anthony Lawrence)

1 ^ST DEFENDANT

AND

MARY LAWRENCE

2 ^ND DEFENDANT

AND

DIANE LAWRENCE

3 ^RD DEFENDANT

Joint Tenancy — Severance

REAL PROPERTY - Joint tenancy - Severance of joint tenancy - Adverse possession

Straw J

Mrs. Carol Lawrence, the first defendant and executor in the estate of Joseph Anthony Lawrence, has applied to this Court for, inter alia , a declaration that the joint tenancy between Andrea Noyon (The Claimant) and Joseph Anthony Lawrence on duplicate Certificate of Title registered at Volume 1129 and Folio 812 of the Registrar Book of Titles has been severed. In the alternative, she seeks a declaration that the said Joseph Anthony Lawrence prior to his death, had been in sole undisputed occupation of the said property for his exclusive use and benefit for over twelve (12) years to the exclusion and dispossession of the other joint tenant Andrea Noyon.

Background

• 1. The claimant, Mrs. Noyon-Mahfood and the deceased, Joseph Lawrence are registered as joint tenants of the property described above since March 8, 1983. The property is known as Apartment 4, Hampshire House, 4 Rekadom Avenue, Kingston 10.

• 2. Mr. Lawrence died on March 7, 2005. The first defendant is the widow and the executor of his estate. The second and third defendants are their daughters. Mrs. Noyan-Mahfood is the adopted daughter of the deceased.

• 3. A letter dated February 5, 1990 from attorneys Millholand Ashenheim & Stone addressed to the deceased is attached to the affidavit of the first defendant/applicant.

  The letter reads as follows:

  "Re: Transfer of land part of Rekadom — Volume 1129 Folio 812

  We enclose the above Instrument of Transfer and our bill for preparation of the same.

  We have the above duplicate Certificate of Title and await any further instructions you may have in the regard."

  A document 'Transfer Under the Registration of Titles Act' is attached to the letter. It is undated and unsigned. It speaks to an agreement between the two joint tenants for the sale of the claimant's interest in the said land to the deceased for a consideration of $200,000.00.

  There is no evidence that the deceased communicated any intention to the claimant in this regard. The claimant has denied any knowledge of this document.

• 4. Based on the affidavit's evidence of Mrs. Mahfood, both herself and the deceased occupied the said premises between 1992 and 1994. She then had sole occupancy until 1999 when she went to the United States of America (USA). She stated that she rented the apartment, collected the rent and paid all the expenses including maintenance. Copy receipts for maintenance payment for various months between 1999 and 2000 are attached to her affidavit. She further stated that in 2001 she migrated to the USA. Arrangements were then made with the deceased for him to collect the rent and pay the expenses.

• 5. On the 29 ^th day of November 2001, the claimant wrote a letter to Mr. Wentworth Charles (The then attorney for the deceased). It reads as follows:

  "Re No. 4 Hampshire House, Registered at Volume 1129, Folio 812

  I refer to yours of October 29, 2001. My consent to the sale of the captioned property is conditional upon the following:

  • i) That the property be assessed by two reputable independent valuators with a view to obtaining the best valuation (in this regard C. D. Alexander and D.C. Tavares Finson & Company are acceptable);

  • ii) that the terms and conditions of the Sale Agreement are to my satisfaction;

  • iii) that the arrangements for division and payment of my share of the net proceeds are satisfactory;

  • iv) that all the relevant supporting documentation is forwarded to me; and

  • v) that I am afforded a reasonable opportunity to properly review and consider all the relevant documents.

  I wish to advise that in order to facilitate expeditious completion of the sale, Mr. José Griffith shall act as my agent in Jamaica.

  In this regard, I am requesting that all the relevant documentation associated with the sale be forwarded to my agent. Appropriate measures would be put in place for the affixation of my signature at the required time. However, I must emphasize that in negotiating the terms and conditions of sale, you allow a reasonable opportunity for communication between me and my agent before any final agreement is reached."

• 6. On the 13 ^th December 2001, Mr. Wentworth Charles replies to the claimant in the following terms (see letter dated December 13. 2001):

  "Dear Mrs. Noyan-Mahfood

  Re: Apartment Hampshire House

  We acknowledge receipt of your letter dated 29 ^th November 2001.

  Our Mr. Joseph Lawrence will accept the valuation of either C.D. Alexander or D.C. Tavares Finson & Company. Kindly confirm which you prefer as a valuation by both parties will only create unnecessary expenditure.

  As soon as we have your response we will prepare the Agreement for Sale, forward it to you for your signature through your agent Mr. José Griffith."

  This letter is noted "cc to Joseph Lawrence."

• 7. The final piece of documentary evidence is titled "Transfer of Land Under the Registration of Titles Act."

  It is dated 7 ^th January 2002 and purports to be signed by the deceased Joseph Lawrence (described as the transferor) and Mary Jodie Lawrence (described as the Transferee). This document states that the Transferor and Andrea Noyon, who are the registered proprietors of the said land are desirous of severing the joint tenancy and wish to hold the land as tenants in common.

  It further states that the Transferor is desirous of transferring his interest of half share in the land to the Transferee. Both signatures are purportedly witnessed by the attorney, Mr. Wentworth Charles.

• 8. Annexed to the affidavit of the first defendant, is a letter dated 23rd July 2008 from Mr. Wentworth Charles to the law firm, Robinson and Clarke. The letter confirms that Mr. Joseph Lawrence gave instructions sometime in 2002 for the severance of the Joint Tenancy. The letter further states that a Transfer and Declaration of value were prepared.

  It is further stated that copies of these documents were obtained from the computer files and enclosed. The copy 'Transfer' when compared by the Court is an exact copy of the one dated 7 ^th January 2002 except that it is undated and unsigned.

  It is to be noted also that Mr. Charles indicates that Mr. Lawrence's file was closed in January 2006 and it has not been located.

  There is no affidavit from Mr. Charles to confirm that the transfer was signed by the parties and in his presence nor that he attached his signature as the witness.

i. Adverse Possession

The court will deal, firstly, with the alternative order sought by the first defendant based on adverse possession.

The factual assertions of the first defendant are to the effect that the claimant has not lived or visited the said property for over 15 years and that herself and the deceased have been the caretaker of the premises, undertaken repairs and seeing to the general upkeep and paying of maintenance, property taxes and insurance.

Mr. Samuel Smith, Counsel for the applicant, has submitted that the claimant has abandoned her interest in the property by her non action. He has further submitted that the copy receipts tendered by her are in issue and that she has failed to exhibit the relevant passport as proof that she was present in the island on the relevant dates.

In order to succeed under this limb, the first defendant would have to establish at least 12 years of adverse possession.

In other words, the first defendant would have to establish that the claimant has done nothing that reflects ownership and has not been in (actual) possession since 1996.

The claimant's affidavit evidence clearly speaks to her occupation of the premises until 1999 and then her collection of rental and management of the property until 2001. Even if the court were to reject the copy receipts exhibited for the period 1999 – 2000, the court accepts that she was in occupation of the premises up to 1999.

Furthermore, the first defendant has not submitted any documents for the period 1999 to 2000 to support her testimony in relation to the collection of rental and maintenance payments during that period.

The court therefore prefers and accepts the evidence of the claimant in relation to the issue of occupation.

The claim for adverse possession would therefore fail.

ii Has there been Severance of Joint Tenancy during the lifetime of the deceased?

This is the major issue that has to be examined by the court.

Before the court embarks upon an examination and analysis of the law in relation to the severance of a joint tenancy, the court has to make a particular finding of fact in relation to the signature of the deceased, Joseph Lawrence on the document titled 'Transfer of Land Under the Registration of Titles Act' which is dated January 7, 2002.

The claimant has joined issue with the signature of Joseph Lawrence on the above document and has stated that it is not genuine.

She states in her affidavit (filed on September 29, 2008) at paragraph 9 as follows:

"--- my dad never made any attempt to buy out my interest and I deny that he signed any transfer. I know my dad's signature, as I was his personal assistant and worked in his business for many years. The signature on the transfer is not my dad's."

On the 30 ^th day of April 2008, Mr. Justice R. Jones made certain orders pursuant to the trial of this matter which included the following:

"Claimant has leave to obtain original transfer dated 7 ^th January 2002 from Mr. Wentworth Charles and, if available, to refer same to handwriting expert, Mr. Major for an opinion in respect of the signature of Mr...