Jamaica Gleaner
Published: Monday | June 6, 2011
Home : Flair
Court of Appeal rules on severance of joint tenancy
McGregor
I start this week's article with the complaint that finding Jamaican legal authorities on any point is like finding a needle in a haystack. Finding cases from England, Australia and Canada only require the click of a mouse, as comprehensive legal websites facilitate keyword searches. It is hard to accept that we must still rely on a tip from a colleague or direct involvement in a case to know what issues arise in the cases that are decided in our courts.

With that being said, I wish to express gratitude to Senior Counsel who told me that we actually have a 2010 Court of Appeal decision which deals with the question of severance of joint tenancy - Lawrence and Others v Mahfood.

As in the case of Gamble v Hankle, the Lawrence case focused on whether a deathbed transfer was effective to sever a joint tenancy, but the outcome of this case was different. The Supreme Court and Court of Appeal ruled that there had been no severance.

In Lawrence, the property was owned by a man and his daughter as joint tenants. In 2002, he purportedly signed a transfer to dispose of his interest to the appellants. The transfer was not registered. A 2005 transfer was also produced. This one purportedly bore the signatures of both joint tenants, but was successfully challenged by Mahfood on the ground that her signature had been forged on the document.

three methods

The Court of Appeal accepted that there are three methods of severing a joint tenancy - (i) by alienation by one of the joint tenants of his share in the property; (ii) by mutual agreement between the joint tenants and (iii) by a course of dealing between the joint tenants.

None of the three methods of severance were found to have occurred in the Lawrence case. First, there had been no alienation of Mr Lawrence's interest, because there was no proof that the signature on the transfer was that of the deceased joint tenant. Second, all the correspondence referred to in the judgment showed that discussions between the joint tenants in relation to the sale of the property had never been concluded, so there was no mutual agreement to sever. Third, the evidence of a course of dealings between the joint tenants from which it could be inferred that there was a common intention on their part to sever the joint tenancy was inconclusive.

Based on my research, there is a distinction between the approach of the English and the Australian courts in relation to the question of severance of joint tenancy. The English cases suggest that a signed transfer by one joint tenant will be sufficient, while in Australia it seems that nothing short of the registered transfer would suffice. The interesting point is that, although Jamaica and Australia both rely on the Torrens System of land registration, neither Gamble nor Lawrence referred to any Australian cases. The question is whether the same conclusion would have been reached in Gamble if the court was persuaded by the Australian cases on the topic.

Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send your comments and questions to lawsofeve@yahoo.com or lifestyle@gleanerjm.com.

 

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