Vernal Ernest Patterson v Millicent Ann Nelson Patterson

• Jurisdiction: Jamaica
• Judge: D. Fraser J
• Judgment Date: 06 February 2019
• Neutral Citation: [2019] JMSC Civ 10
• Docket Number: CLAIM NO. 2013HCV00188
• Court: Supreme Court (Jamaica)
• Date: 06 February 2019

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2013HCV00188

BETWEEN:

Vernal Ernest Patterson

Claimant

and

Millicent Ann Nelson Patterson

Defendant

IN CHAMBERS

Deneve Barnett and Terry Joy Stephenson instructed by Brown and Shaw for the claimant

Charmaine Patterson, Kenesha Baker and Kerenia Marsh instructed by Charmaine Patterson and Associates for the defendant

Presumption that joint equitable ownership flows from joint legal ownership — Rebuttal of presumption a heavy burden but can be displaced by showing a different common intention — Common intention to be deduced objectively from parties words and conduct — The court should consider what is fair having regard to the whole course of dealing between the parties in instances where the intended shares are uncertain — Factors to consider in determining common intention include financial contribution and the purpose for which the property was acquired — Occupation rent — Central consideration is for the entitlements and responsibilities of the parties to be fairly balanced — First option to purchase family home given to spouse in possession — Preservation of the status quo — First option to purchase investment property given to other spouse — Common intention to acquire and share motor vehicle jointly

D. Fraser J

Introduction

1 The claimant Vernal Patterson and the defendant Millicent Patterson were married on December 31, 1986. During the subsistence of the marriage, they acquired the following properties:

• i) Lot 169 Fairfield Avenue, Fairview Park in the parish of Saint Catherine, registered at Volume 1211 Folio 58 of the Register Book of Titles (Fairfield Avenue property). The parties hold this property together as joint tenants;

• ii) Unit 1, Fairfield Boulevard, Fairview Park in the parish of Saint Catherine, registered at Volume 1322 Folio 85 of the Register Book of Titles (Fairfield Boulevard property). The parties also hold this property as joint tenants;

• iii) A number of motor vehicles the last being a Toyota Vista with registration number 5797 DX. The defendant is the sole registered proprietor.

2 In 2007, the claimant filed a Petition for dissolution of the marriage on the ground that it had irretrievably broken down and the parties had separated since December 25, 2005. The Decree Absolute dissolving the marriage was granted on November 15, 2007.

The Application

3 In an application brought by Fixed Date Claim Form under both the partition Act and the Property (Rights of Spouses) Act (PROSA) filed January 11, 2013 the claimant sought the following relief:

• 1. An Order that the Joint Tenancy of premises situated at 169 Fairfield Avenue, Fairview Park in the parish of Saint Catherine, and more specifically described as ALL THAT parcel of land, part of ANGELS, COLES PEN, EBONY PEN AND PENGELLY'S RUN, THE STEWARTY, CERMONA AND WYNTERS PEN called FAIRFIELD in the parish of SAINT CATHERINE, being the Lot numbered ONE HUNDRED AND SIXTY-NINE on the plan of Angels, Coles Pen, Ebony Pen and Pengelly's, The Stewarty, Cermona and Wynters Pen called Fairfield and now being the whole of the land comprised in Certificate of Title registered at VOLUME 1211 FOLIO 58 of Register Book of Titles of which the Claimant is registered as a JOINT TENANT in conjunction with the Defendant, is to be severed and/or;

• 2. A Declaration that the Claimant and the Defendant each have a separate one-half share in the said premises known as Lot numbered ONE HUNDRED AND SIXTY—NINE on the land called Fairfield and now being the whole of the land comprised in Certificate of title registered at VOLUME 1211 FOLIO 58 of Register Book of Titles and/or;

• 3. An Order that a Valuation of the premises registered at VOLUME 1211 FOLIO 58 of the Register Book of Titles be effected by a reputable Valuator to be agreed by all parties, or by a reputable Valuator to be appointed by the Registrar of the Supreme Court should the claimant and defendant fail and/or refuse to come to agreement, the cost of the Valuation to be shared equally by both parties and/or;

• 4. An Order that the premises registered at VOLUME 1211 FOLIO 58 of the Register Book of Titles be sold and the net proceeds of sale be divided equally between the claimant and the defendant and/or;

• 5. An Order that the claimant be entitled to first option to purchase the said premises registered at VOLUME 1211 FOLIO 58 of Register Book of Titles within thirty (30) days of the date of this Order and/or;

• 6. An Order that the claimant does advise the defendant's Attorneys-at-Law within fourteen (14) days of the date of this Order whether he intends to exercise the option at paragraph 5 and/or;

• 7. An Order that should the claimant choose not to exercise the option in paragraph 5 hereof then the defendant is entitled within fourteen (14) days of the claimant's failure to exercise the option in paragraph 5 hereof, to purchase the said premises and/or;

• 8. An Order that should the Claimant choose not to exercise the option contained in paragraph 5 hereof and should the Defendant choose not exercise the option contained in paragraph 7 hereof, that the premises be sold by private treaty or public auction with the valuation being the reserve price. The claimant's Attorneys—at-Law shall have carriage of sale in any event and/or;

• 9. The defendant is to pay the claimant occupational rent with respect to the self—contained unit occupied residentially by the Defendant in the said premises known as Lot numbered ONE HUNDRED AND SIXTY-NINE on the plan called Fairfield and now being the whole of the land comprised in Certificate of Title registered at VOLUME 1211 FOLIO 58 of the Register Book of Titles from December 2007 to the date herein and/or;

• 10. The defendant is to file and serve a Statement of account of all rent and outgoings from December 2007 to the date herein, in respect of the said premises known as Lot numbered ONE HUNDRED AND SIXTY-NINE on the plan called Fairfield and now being the whole of the land comprised in Certificate of Title registered at VOLUME 1211 FOLIO 58 of the Register Book of Titles and/or;

• 11. The Defendant shall pay to the Claimant one-half of all rent and/or income earned from the said premises situated at 169 Fairfield Avenue, Fairview Park in the parish of Saint Catherine and more specifically described as Lot numbered ONE HUNDRED AND SIXTY-NINE on the plan called Fairfield and now being the whole of the land comprised in Certificate of Title registered at VOLUME 1211 FOLIO 58 of the Register Book of Titles and/or;

• 12. An Order that the Joint Tenancy of premises situated at Unit 1, Fairfield Boulevard, Fairview Park in the parish of Saint Catherine and more specifically described as Strata Lot numbered ONE on the Strata Plan numbered Nine Hundred and Seventy-two and Two undivided 1/172 shares in the common property therein and being Part of the Land comprised in Certificate of Title registered at VOLUME 1322 FOLIO 85 of the Register Book of Titles, of which the Claimant is registered as a JOINT TENANT in conjunction with the Defendant, is to be severed and/or;

• 13. A Declaration that the Claimant and the Defendant each have a separate one-half share in the said premises situated at Unit 1, Fairfield Boulevard, Fairview Park in the parish of Saint Catherine and registered at VOLUME 1322 FOLIO 85 of the Register Book of Titles and/or;

• 14. An Order that a Valuation of the premises registered at VOLUME 1322 FOLIO 85 of the Register Book of Titles be effected by a reputable Valuator to be agreed by all parties, or by a reputable Valuator to be appointed by the Registrar of the Supreme Court should the claimant and defendant fail and/or refuse to come to agreement, the cost of the Valuation to be shared equally by both parties and/or;

• 15. An Order that the premises registered at VOLUME 1322 FOLIO 85 of Register Book of Titles be sold and the net proceeds of sale be divided equally between the claimant and the defendant and/or;

• 16. An Order that the claimant be entitled to first option to purchase the said premises registered at VOLUME 1322 FOLIO 85 of Register Book of Titles within thirty (30) days of the date of this Order and/or;

• 17. An Order that the claimant does advise the defendant's Attorneys-at-Law within fourteen (14) days of the date of this Order whether he intends to exercise the option at paragraph 5 and/or;

• 18. An Order that should the claimant choose not exercise the option in paragraph 16 hereof, then the Defendant is entitled within fourteen (14) days of the Claimant's failure to exercise the option in paragraph 16 hereof, to purchase the said premises and/or;

• 19. An Order that should the Claimant choose not to exercise the option contained in paragraph 16 hereof and should the Defendant choose not exercise the option contained in paragraph 18 hereof, that the premises be sold by private treaty or public auction with the valuation being the reserve price. The claimant's Attorneys—at-Law shall have carriage of sale in any event and/or;

• 20. The Defendant is to file and serve a Statement of account of all rent and outgoings from December 2007 to date herein, in respect of the said premises situated at Unit 1, Fairfield Boulevard, Fairview Park in the parish of Saint Catherine and more specifically described as Strata Lot number ONE on the Strata Plan numbered Nine Hundred and Seventy-two and Two undivided 1/172 shares in the common property therein and being Part of the Land comprised in Certificate of Title registered at VOLUME 1322 FOLIO 85 of the Register Book of Titles. The Statement of account shall be from December 2007 to the date herein and/or;

• 21. The Defendant shall pay to the Claimant one-half of all rent and/or income earned from the said premises situated at Unit 1, Fairfield Boulevard, Fairview Park in the parish of Saint Catherine and more specifically described as Strata Lot numbered ONE on...