Murray v Murry
| Jurisdiction | Jamaica |
| Judge | P. A. Williams, J. |
| Judgment Date | 03 April 2009 |
| Judgment citation (vLex) | [2009] 4 JJC 0302 |
| Court | Supreme Court (Jamaica) |
| Date | 03 April 2009 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE HIGH COURT DIVISION
Mr. Gordon Steer instructed by Chambers, Bunny & Steer for the Claimant.
Miss Sheila Tomlin instructed by Sheila Tomlin and Associates for the Defendant.
MATRIMONIAL PROPERTY - - Interest - Declaration of interest - Whether doctrine of adverse possession applicable - Whether subject to Property (Rights of Spouses) Act 2004, sections 6 and 7 or 13 and 14
Evadney and Vincent Murray were married on the 19 th of April, 1980. While they were living and working in England they decided to acquire a home in Jamaica. They planned to return to live in this home. A property located at 33 Greenvale Housing Scheme, Mandeville, Manchester was purchased in 1986 for one hundred and twenty-five ($125,000.00) thousand dollars.
The deposit and closing costs for the purchase were taken from the parties' joint saving account at Jamaica National Building Society. A mortgage was obtained from the same institution to finance the balance for the purchase of this property.
The parties moved in and thereafter began commuting between Jamaica and the United Kingdon.
The marriage broke down and the parties separated.
Mrs. Murray has bought these proceedings under the Property (Rights of Spouses) Act 2004 ("the Act") asking for a determination of the beneficial interest of the parties in respect of the property. She seeks the following order:-
"that she is entitled to the entire beneficial interest in 33 Greenvale Housing Scheme, Mandeville in the parish of Manchester registered at Vol. 1167 Folio 623 of the Register Book of titles."
The claimant asserts that she has taken, care of the property and has paid the mortgage. She went on subsequently to assert that the defendant had in effect abandoned the property for a period in excess of twelve (12) years making her entitled to ownership by way of adverse possession.
The defendant denies her assertions and ask for a declaration that the property be sold and that the proceeds be shared equally between them.
Her story
The claimant said that they separated in 1991. She subsequently learnt that relatives of the woman with whom the defendant was co-habiting had been allowed to live at the property.
She retained the services of an attorney and recovered possession of the property. On her return to England she again learnt he had rented the property and again she recovered possession with the assistance of an attorney.
The property was in need of repairs and she fixed it up at her sole expense. She paid off the mortgage in 1995 through her sole efforts. She exhibited copies of bank drafts drawn on her account in England and sent to Jamaica National to discharge the mortgage in 1995. She also exhibited a letter dated June 8, 1995 from that institution acknowledging the receipt of $75,396.50 from which sum a withdrawal was made to close a mortgage account.
She asserted that the defendant has abandoned the property and has made no claim in respect of an interest in the property for more than twelve (12) years.
Under cross-examination the claimant conceded that the parties' intention was to make the property their home when they retired. She acknowledged that the house was in fact purchased from their joint funds.
She explained that upon the relatives of the defendant's "mistress" moving out of the house in 1994 other tenants were living there and this went on till 1994 to 1995.
She recognized that the defendant may have continued commuting to and from the United Kingdom but she didn't know how often or for how long he may have stayed. She later conceded he may well have visited the property without her knowledge.
She insisted that she was unaware of him doing anything to the property since 1991. Attempts to get his assistance to pay the mortgage she said proved futile. It was she who found a tenant in 1994 and rented for $3000.00 a month. Eventually it was she who effected repairs to the property in 2000 or 2001.
She admitted that she visited Jamaica every (1) one or two (2) years and since her retirement she now spends up to two (2) months. She stays at the property as well as in Chapleton, May Pen, Clarendon.
She was aware that he had served her tenant with a notice to quit the property in 2007.
His story
The defendant said that they had separated prior to 1991. He pointed to the fact that he had a child out of wedlock in 1989. He subsequently divorced the claimant in 1999 and then married the mother of the child in December of the same year.
As far as he is aware the claimant does riot reside at all at the property but now lives in England and stays at Buckner Road, May Pen in Clarendon when in Jamaica.
He it is who exhibits a photocopy of the duplicate certificate of title for the property showing the transfer to them both as joint tenants for consideration of one hundred and twenty-five thousand dollars. ($125,000.00)
He asserted that the claimant was not the sole "payer" of the mortgage since 1991. He paid the building society a lump sum of approximately three hundred pounds (�300) and the balance of the mortgage of forty thousand dollars ($40,000.00) was paid from state benefits he received in the United Kingdom. It is his contention that they held two joint mortgages in the amount of eighty thousand dollars ($80,000.00) and twenty-five thousand dollars ($25,000.00) respectively which were discharged either by him or using his money.
It is useful to note that the title exhibited speaks to these two mortgages, one obtained in 1986, the other in 1987, both of which were discharged on the 4 th of July, 1995.
The defendant acknowledged that relatives of his present wife, Isadore, were invited to occupy the property in 1991 as he did not want to leave the property vacant.
He also stated that the claimant rented the property since 1991 and has been in receipt of rent monies.
He indicated that he is aware of an 'existing tenant" who he discovered in 2007 when he was prevented access to the property by this person. He served a notice to quit on this tenant.
The defendant further asserted that he was unable to locate the claimant for a period of time. He insisted that he maintained the property by inter alia:- installing new windows jams, fitting "burglary bars", repairing the ceiling, painting the interior and exterior and repairing the garage.
The defendant found it prudent to exhibit a copy of the marriage certificate evidencing his marriage to Isadore Williams on December 15,1999.
Under cross-examination the defendant conceded that the claimant had been collecting rent from the property since 1991. He stated that Isadore lived at the premises until 1988 � his reference point is when "Gilbert blow". He had a son with Isadore born in 1989 and they lived together for a short time until she joined him in England in 1989.
He insisted that he contributed to the mortgage even after "they mash up".
Apart from being barred entrance to the property from one tenant in 2007, a similar incident had occurred in 1996. The defendant, however, was insistent that he had been to the property several times between 1996 and 2007.
He at one point seemed to be challenging the purchase price as recorded on the title, insisting that it was actually two hundred and twenty-two thousand dollars ($222,000.00). He seemed to however acknowledge that this figure represented the total cost including removing one Mrs. Jones from the house.
He ended up agreeing that the purchase price was in fact one hundred and twenty-five thousand dollars ($125,000.00).
He accepted that after Isadore and their son left the property a tenant of the claimant lived there until 1994. He thereafter went in and did repairs. He named two (2) persons who assisted. He said it was while he was so engaged that the claimant came there, this being the first he was seeing her for a long time.
He stated that after he completed the repairs, the claimant rented it out again without giving him any of the rent.
He agreed that it was the claimant who has been in control of the house since Isadore moved out in 1989. He however expressed the view that she was doing it behind his back. He pointed out that he has been in Jamaica full time since 1991.
The Submissions
For the Claimants
Mr. Steer submitted that this property cannot be considered the family house. He opined that since the parties separated prior to the coming into effect of the Act on April 1, 2006 and since the Act has no retrospective effect it would mean there can be no family house. If one existed it would be in England as the intention was for the parties to retire in Jamaica which never happened. In any event the house was never the principle place of residence.
It is submitted that sections 14 (1) a - b and 14 (2) (a) (c) and (e) of the Act would however be applicable to the matter.
It is highlighted that the defendant's contribution towards the property is as follows:-
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(i) contribution towards the deposit and closing costs
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(ii) contributions towards the mortgage from 1986 to 1989.
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(iii) the payment of �300 in 1989 towards the mortgage.
This, it is urged, would be far less than that of the claimant who would have paid her portion of the mortgage up to 1989 and thereafter was solely responsible for the payments until she paid a balance lump sum amount of $77,948.12 to discharge the mortgage in 1995...
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