Are You Hindering Your Generation’s Wealth?
Having land in Jamaica is a great vehicle for building generational wealth. However, this can be hindered when your Instrument of Transfer is not registered on the Duplicate Certificate of Title (“Title”). Based on my legal experience in this field, I have seen unregistered Instrument of Transfers which requires urgent and immediate legal attention. However, navigating the waters is our service to you.
Instrument of Transfer
An Instrument of Transfer (“Transfer”) is a legal document which essentially conveys that the property is being transferred to a new owner by way of sale, gift, enforcement of court order, enforcement of security, grant of probate or grant of administration.
Enforceability
To be enforceable, both the transferor (one giving property) and the transferee (one receiving property) must sign this document in the presence of a Justice of the Peace, Notary Public or Attorney-at-Law. Further, this document must be stamped by the Tax Administration of Jamaica showcasing evidence of transfer tax payment and stamp duty payment.
Registration on Title
Whilst receiving an enforceable Transfer states that you should be the new owner, you are halfway there to building your generational wealth. This document must be lodged at the National Land Agency along with the Title and other relevant documents to register the new ownership on the Title. Once the new ownership is registered on the Title, this is confirmation that you are now the new legal owner of the property. Congratulations!
Beware : Unregistered Transfer
It has been declared that a failure to register a Transfer means that you are not the legal owner of the property but rather, you only have an equitable interest in the property. Having an equitable entitlement to the property simply means that you have a right to acquire the legal title and that you are able to use and enjoy the property which may come with the responsibility of financing the property.
However, the disadvantage of an unregistered transfer is that any legal entitlement surrounding the property which is ultimately registered on the Title can override your unregistered transfer. Legal entitlements include but are not limited to adverse possession matters, estate matters, court orders or enforcement of security matters.
This was situation in the Jamaican case of National Import- Export Bank of Jamaica v Montego Bay Investment Company Limited [2017] JMSC Civ 67. In this case, a financial institution obtained a charging order over a property which was registered in the name of a deceased individual who was in default. The charging order was being contested by the deceased’s daughter who argued that the order could not be enforced since the property did not belong to her father’s estate. Rather, the property belonged to her, through a Transfer which the deceased executed prior to his death. However, the deceased’s daughter executed the Transfer after the deceased’s death and so the Transfer remained unregistered on the Title even up to the time of the court proceedings. The court held that the unregistered Transfer was an “imperfect gift” in want of registration and concluded that the land reverted to the deceased’s estate, since an unregistered Transfer only conveys an equitable interest. As a result, since the deceased’s daughter was not the legal owner of the property, the property was still subject to the charging order as it belonged to the owner registered on the Title, being the deceased.
Closing
Every case is unique, however an unfortunate situation is indeed a learning lesson and a reminder to never hinder your generation’s wealth. Having an experienced Attorney-at-Law at Ramsay & Partners to assist you with navigating registering your Transfer to ensure it is in proper form to avoid delays and making the process seamless for you means you are one step closer to building your property empire. If you would like to discuss your property, call our office at 876-906-2616 or fill out a contact form online to schedule a consultation.
Chantelle Biersay is an Associate at Ramsay & Partners and a member of the firm’s Transactional Department and Real Estate Department. She may be contacted at biersay@ramsayandpartners.com or through the firm's website https://ramsayandpartners.com/. This article is for general information purposes only and does not constitute legal advice.