LOIS HAWKINS v LINETTE HAWKINS McINISS  JMSC Civ 14
PROPERTY – EXTINCTION OF TITLE BY ONE CO-OWNER – WHETHER TITLE EXTINGUISHED – HUSBAND DECEASED – WHETHER THIRD WIFE CAN CLAIM PROPERTY UNDER EXTINCTION OF TITLE PRINCIPLE
Mr. H got Married to Mrs. H and both bought a property; they later got divorced and he bought her share of the property making him sole owner.
In 1989, Mr. H marries Mrs. H2. And her name was added to said property as Joint tenant, however, she had never lived or even slept at the property. Mr H died in 2009 and at the time of his death, Mr. H and Mrs. H2 were still registered as joint owners of the property.
Mr. H and Mrs. H2 had migrated to Canada, but, after a few years, he returned to Jamaica leaving Mrs. H2. Whilst in Jamaica he moved a new lady-friend into the property, and they lived there together until his death; this lady who we will refer to from hereon as Mrs. H3, asserts that she, in fact, married Mr. H in March 1999, though, the only evidence of their marriage was a copy of marriage receipt given to the bride on the wedding day.Mrs. H2 denies being divorced from Mr. H and there was no evidence of the divorce.
After Mr H’s death, Mrs H3 filed a claim where she asserts that despite her (Mrs. H3), not having contributed any money to the acquisition of the property , Mrs. H2 title is extinguished and had been even whilst Mr. H was alive and as such Mrs. H2 is not entitled to take by way of survivorship or at all.
Mrs. H3 was granted Letters of Administration of Mr. H estate in May 2012, and as Administratrix she filed a claim asking for inter alia, declarations that
(i) the property forms part of Mr H estate
(ii) that Mrs. H2 holds the property on resulting trust for the estate
(iii) that the property was the matrimonial home of Mr. H and Mrs. H3, and
(iv) that Mrs. H3, as Mr. H wife, she is entitled to an interest in the property.
Mrs. H3 relied on Mr. H’s conduct in relation to the property to displace Mrs. H2.
1. Whether Mrs. H2 interest in the property been extinguished
2. Whether Mrs. H3 have an interest in the property
The Court of Appeal case of Fullwood v Curchar  JMCA Civ 37 was referred to, to demonstrate that :-
i. Generally, where there is a joint tenancy and one co-owner dies then the other takes all by way of the right of survivorship; however, the Limitations Act makes each co-owner possession separate and as such, one co-owner may lawfully dispossess the other.
ii. a person’s name being on a title is not conclusive evidence that they cannot be dispossessed, even by a fellow co-owner if certain conditions exist based on the Limitation’s Act.
The result being that if a co-owner is dispossessed under the Limitation Act, the right of survivorship is extinguished and a person can rely on this displacement to resist any claim of possession; which would result in the co-owner having to prove that her title was not extinguished and this would, in turn, give her standing to bring the claim.
Further, dispossession arises where the dispossessor has a sufficient degree of physical custody and control over the property in question and an intention to exercise such custody and control over the property for his or her benefit; no hostile act is required; however, the acts relied on to prove dispossession must be sufficient.
As it relates to dispossession, the case of Powell v McFarlane and another (1979) 38 P & CR 452 was referred to, to demonstrate that the slightest act done by or on behalf of the owner will negative the claim of the intruder; and that the court will require clear evidence that the trespasser has the requisite intention to possess and he must make that intention clear to the world. Possession must be unequivocal and exclusive.
On the facts, WH was in physical possession of the property but did he have the requisite intention?
Mrs. H3 states that she met WH in 1993 and at that time he was married to Mrs. H2, (note: she cannot be classified as common law wife as that require two SINGLE persons).
When she met WH, he was living alone at the disputed property. She moved in with him in 1995, by all appearances Mrs. H3 was treated as the woman of the house, which is an important factor when considering Mr. H intention.
The fact that WH permitted Mrs. H3 to move into the house is not of itself sufficient to prove his intention, more is required.
On the evidence, although Mrs. H2 name was on the title since 1989, Mrs. H2 and WH did not live at the disputed property as husband and wife, she never took up physical possession of the property throughout her marriage to WH, and she never stayed there even whilst visiting from Canada despite the fact that WH moved into the property since at least 1993.
Mrs. H3 says that she met Mrs. H2 in 2009. If this is correct, this means that WH never had his wife living at the disputed property but moved in Mrs. H3 in 1995.
Mr. H dismissed his housekeeper that he and Mrs. H2 installed in the house around 1995 when Mrs. H3 moved in, Mr. H never disclosed this to Mrs. H2 and she was unaware of this even up until 1998, which suggest that Mr. H felt that he was completely in charge.
Mrs. H2 says that the relation with WH broke down in 1997/98.
If this is correct then this would mean that WH would have installed Mrs. H3 in the house in 1995, went to Canada at some point afterward, and return to Jamaica in 1997.
Mrs. H2 said that in 1997 she showed up at the property unannounced and she was never let into the house, as Mr. H and Mrs. H3 was locked inside.
The question is where in all this did Mr. H form the intention to possess the property as if he were the sole owner?
From this evidence beginning in 1995 right through to Mrs. H2 visit in 1997, it appeared that WH showed an intention to regard the property as his own. He regarded himself as his own man, as the sole owner and not a co-owner with Mrs. H2.
Mrs. H2 name on the title gave her a prima facie legal and beneficial interest in the property. She alleged that she paid off the mortgage, however this does not prevent the operation of the doctrine of extinction of title.
Mrs. H2 said that she maintained a presence through her children but the evidence of this was not reliable and therefore not accepted. On the whole, the court preferred the evidence of Mrs. H3. The act of seeking to eject Mrs. H3 from the property came too late.
The relevant period for examination is 1993 to 2009. WH physical possession of the property is not in dispute.
The question then was, did he intend to possess the property and treat it as his own? And did this continue for the requisite period of twelve years?
On the evidence presented the court concluded that in 1995 when WH invited Mrs. H3 to live at the property, after Mrs. H2 had returned to Canada, he formed the intention to occupy the property as if he were the sole owner.
The manifestation of this was the termination of the helper’s services when Mrs. H3 moved into the house and his subsequent relationship with Mrs. H3, which Mrs. H2 gleaned from the telephone calls she made to the property between 1995/97. This finding is supported by the fact that on Mrs. H2 evidence the intimacies that couples who are still functioning as a couple would share regarding domestic arrangements were absent.
Additionally, at no time did Mrs. H2 ever sleep at the property. On all her visits to Jamaica when WH was at the house she never slept there. Even in 1997 when she claimed that she went to the house she was not permitted to sleep there. This intention continued right up to the time of WH death in 2009.
The act of seeking to recover possession from Mrs. H3 came too late. The extinction of title claim was established.
This meant that the ESTATE of WH was entitled to the entire legal and equitable interest in the disputed property. Mrs H2 was dispossessed by her husband- her fellow co-owner.