Reader wrote:

In 1992, I inherited half of a property in Jamaica, along with one other beneficiary as tenants in common.

The co-owner lives in England and has never shown an interest in the property since we inherited it. In fact, his exact whereabouts are unknown. I would like to sell the property. What can I do?

Response:

The following four alternatives which come to mind are not necessarily exhaustive:

1. Sell your own interest in the property and ignore the co-owner

As the property is held as tenants in common, one of the two owners can dispose of his interest without reference to the other owner. However, any third party who acquires that interest would have to be willing to continue to own the property as tenants in common with the reader's co-owner. This option may not be attractive to a third party.

2. Obtain a partition order

The reader could make an application to the court pursuant to the Partition Act to divide his interest in the property from his co-owner. In this way, the reader could obtain a separate title for his share of the property, and allow his co-owner's interest to remain while selling his share. Alternatively, the court hearing such an application could order the sale of the property and distribution of the proceeds.

The anticipated difficulty in adopting this course is that the co-owner may need to be notified of the action. However, the court may either permit service by advertisement or dispense with service entirely.

3. Acquisition by adverse possession

The reader could apply to the court for a declaration that he has acquired his co-owner's interest in the property by adverse possession. To succeed in this application, the reader would need to show that he has had exclusive control of the property without obstruction or interference from the co-owner for at least 12 years. (This would be similar to the situation in the case of Wills v Wills, which was mentioned in last week's article.)

4. Presume that the co-owner is dead

If efforts to locate the co-owner for the last seven years have proven futile, the reader would apply to the court for a declaration that the co-owner is presumed to be dead, in which case the beneficiaries of the co-owner's estate could be invited to co-operate in the sale of the property.

This option would work best if combined with Option 3, because the reader would become embroiled in fresh issues with the beneficiaries of the co-owner's estate. However, when both options 3 and 4 are combined, the reader would be able to achieve the most favourable outcome of being able to sell the property and take the entire proceeds of sale.

The choice of options will depend on a full exposition of the circumstances of the case. As the situation is capable of resolution, the reader should consult an attorney-at-law and provide detailed instructions so that he could be advised of the best course to pursue.

Sherry-Ann McGregor is a partner and mediator in the law firm of Nunes, Scholefield, DeLeon & Co. Send feedback and comments to lawsofeve@yahoo.com or lifestyle@gleanerjm.com.