Yvette Rowe v Janet Rowe
| Jurisdiction | Jamaica |
| Judge | Lindo J |
| Judgment Date | 07 May 2019 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2016HCV03864 |
| Date | 07 May 2019 |
[2019] JMSC Civ 95
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. 2016HCV03864
Mrs. Joan Thomas instructed by E D Davis & Company for the Claimant
Mr. John Givans instructed by Givans & Company for the Defendant
Claim for accounting for rent collected — whether beneficiary intermeddling in estate — Claim for removal of caveat — Defendant in actual possession — whether adverse — Proprietary Estoppel — Limitation of Actions Act
Mr Allan Rowe died intestate on May 12, 2009. He died leaving the following properties:
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(i) Lot 2, Papine Estate, known as 3 University Road, Kingston 7, comprised in Certificate of Title registered at Volume 1181 Folio 679 of the Register Book of Titles
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(ii) Lot 1 on plan of part of August Town, known as part of 32A Bryce Hill Road and 81 August Town Road, Saint Andrew, comprised in Certificate of Title registered at Volume 1330 Folio 336 of the Register Book of Titles, and
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(iii) 85 August Town Road, Kingston 7, comprised in Certificate of Title registered at Volume 782 Folio 17 of the Register Book of Titles
Prior to his death, Mr Rowe entered into a ‘Stipulation of Settlement Agreement’ with his then ex-wife, Mispah Rowe, (filed under Index No 8632/1997 in the Supreme Court of the State of New York) in relation to the property situated at 85 August Town Road. A term of this Agreement was that he was to transfer the property “within 90 days of the execution of the agreement” to the said Mispah Rowe and to Michael Rowe, one of his sons. This was not done and as such became the responsibility of the Claimant, as administratrix of his estate.
Mr Allan Rowe had also, over a number of years, given the Defendant, Janet Rowe, his daughter, multiple Powers of Attorney to manage his affairs in Jamaica. She had been charged with the responsibility for collecting rental income for the properties and for the maintenance of the said properties. This she continued to do for some time after the death of the deceased.
The Claimant, Yvette Rowe, widow of Allan Rowe, was appointed administratrix of the estate of the deceased by a grant of Letters of Administration made on January 14, 2013. She is ordinarily resident in the United States of America (USA) while the Defendant currently maintains occupation of Apartment 3C, part of the property located at Lot 2, Papine Estate, Saint Andrew (3 University Road). The Defendant has occupied this apartment since 1997. On September 17, 2013 she lodged a caveat (No.1841982) at the Office of Titles against the Certificate of Title relating to the said property.
On September 15, 2016, Yvette Rowe filed a Fixed Date Claim Form with affidavit in support. In this claim, she seeks, inter alia, that:
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i. the Defendant give an account of all rent collected from tenants at the three premises beginning at the date of death of Allan Rowe.
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ii. the Defendant deliver up to the Claimant or her Attorneys-at-Law all proceeds of the rent collected in relation to the properties at 3 University Road and 85 August Town Road from May 12, 2009 to present, and all proceeds of rent collected for the property located at 32A Bryce Hill Road from May 12, 2009 to September 9, 2015.
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iii. that the Duplicate Certificates of Title for the premises located at 3 University Road and 85 August Town Road held by the Defendant be delivered up to Claimant or her Attorneys-at-Law.
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iv. An Order to direct the Registrar of Titles to remove the caveat numbered 1841982 lodged by the Defendant on September 17, 2013 against the Certificate of Title for the premises located at 3 University Road.
Janet Rowe, on February 15, 2017, in compliance with an order of the court, filed an affidavit in response to the claim. She subsequently filed affidavits on May 26, 2017 and March 2, 2018, in further response to the claim, and denying the allegations outlined by the Claimant.
At the commencement of the trial, the court was advised that there was now no issue in relation to the delivery of the Duplicate Certificates of Title as they had been handed over to the attorneys-at-law for the Claimant.
At the trial on May 10, 2018, the affidavits of the Claimant filed on September 15, 2015, May 11, 2017 and November 10, 2017 were admitted as her evidence-in- chief and she was cross-examined.
Yvette Rowe alleges that Janet Rowe has been collecting rent since the death of Mr Allan Rowe and has been using the monies collected for her own benefit. Her evidence is that the Defendant has intermeddled in the estate of the deceased and has retained sums that are owing and due to rightful title owners, as well as to the estate, and has put the Claimant at risk of civil action by the beneficiaries entitled under the estate.
She alleges that after having received the Grant of Letters of Administration in the estate, she was at all times prevented by the Defendant from exercising her duties with the respect to management of the properties owned by the deceased.
In amplifying her evidence, by commenting on paragraph 4 of the affidavit of the Defendant filed on March 2, 2018, she stated that it was not true that she had not asked for any receipts, as before her husband died, the Defendant used to send money whenever the deceased asked, and after he died, there was no income coming in so sometimes she, the Claimant, would ask about the rental income and receipts. She stated further that she had no knowledge of her, the Defendant, not giving or keeping receipts for money she received for rent. The Claimant stated that, to her knowledge, there was no discussion with the Defendant regarding any repairs carried out on the properties, financed from the rental income.
The Claimant's case further is that the Defendant would only send monies on an ad hoc basis and would do so to assist with the maintenance of her siblings and that she refused to provide her with a monthly statement of the rent she had collected upon her request. She contends that after obtaining the Grant of Letters of Administration, the Defendant would rarely send any money, and that the sum of three thousand United States Dollars (USD$3000.00) was handed over to her by the Defendant, on the instructions of the deceased, prior to his death. This sum the Claimant says was given to her by the Defendant at a Burger King branch in the USA.
In relation to the Apartment 3C at 3 University Road, the Claimant states that it was not given to the Defendant by the deceased, but that she had been given permission to live there by the deceased, and it remained the family home in which they stayed whenever they visited the island.
Upon cross-examination by Mr Givans, the Claimant admitted that she had been in the USA when the apartment complex was built and cannot speak to when construction commenced, when it was completed, how many apartments exist on the building, or whether or not the deceased gave an apartment to the Defendant. The Claimant also agreed that along with the deceased, she only stayed in the apartment with the Defendant on one occasion, and that she had also stayed there another occasion, without the deceased.
The Claimant admitted to relying on, and seeking the Defendant's help even after receiving the Grant of Administration and also admitted that she has not visited any of the properties owned by the deceased since his death.
Janet Rowe's affidavits filed February 15 and May 26, 2017 and March 2, 2018, were accepted as her evidence in chief, and she was cross-examined.
She indicates that she was the person who sought buyers for the property located at 32A Bryce Hill Road and that she had directed the current owners to the Attorneys-at-Law on behalf of the estate in order to purchase same. She further outlines that there was no contention between herself and the Claimant for some time and that they had worked in unison, with the law firm E. D. Davis & Associates in order to assist with the administration of the estate of the deceased.
She states that she implored the Claimant, on numerous occasions, to assume some responsibility in the management of her father's affairs and even after having obtained the Grant of Letters of Administration, the Claimant failed to exercise her duties as Administratrix.
Exhibiting what she states to be one of many Powers of Attorney issued to her in order to manage the estate, the Defendant states that she acted as the deceased's agent and managed all his affairs and businesses. She maintains that the sums generated from the rent, which she managed to collect, could not and would not sway her to continue to maintain her father's affairs, but rather, that she did so in order not to see his assets wasted.
The Defendant states further that the highest rental fee paid by any of the tenants, fifteen thousand dollars ($15,000.00), was paid by only three (3) tenants, the lowest paid rent amounted to five thousand dollars ($5,000.00), and the most common rental sum was twelve thousand dollars ($12,000.00). All of these she outlines, were not paid on a consistent basis.
She also states that the monies spent to conduct major repairs to the properties included work done on the roof, for retiling, repairing kitchen cupboards, replacing doors and bathroom fixtures, painting exteriors, cutting the yards, plumbing work and drawing and cleaning of the pit several times, at the property located at 85 August Town Road.
In exhibiting receipts, she highlights a trend of expenditure amounting to the sum of seven hundred and ninety-five thousand dollars ($795,000.00) for repairs and maintenance of the properties up to July 2016. She states that having not been...
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