Ruel Woolcock & Co.

Jamaican Real Estate Attorneys

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PROPERTY (RIGHTS OF SPOUSES) ACT 2004

The Property (Rights of Spouses) Act became the law of Jamaica on April 1, 2006. The biggest change for which this bit of legislation owes credit is the presumption that each spouse has a 50% interest in the family home, regardless of whether both or only one name is registered on the title for the property. Under this Act a common law spouse is treated in the same way as a spouse pursuant to a marriage however for such unions to qualify for protection the union must be between a single man and a single woman living together continuously for a period of at least five years. 

The Court should now find it much easier to settle property disputes between spouses in respect of the family home. Hitherto it was necessary to embark on an artificial determination of the common intention of the parties as at the time of acquision which invariably was challenging since a happy couple very rarely express such intentions when purchasing a family or matrimonial home. To solve this the learned Judges would look at the respective contributions and from that derive the intention. Of course such an approach often led to some unfairness since the party with the greater financial backing very often would end up with the lion's share.

A party who wishes to avail himself/herself of the benefits of the Act must file the application within 12 months of separation or ending of the marriage. Additionally a caveat can be lodged against the title for the Family Home preventing any disposal without first notifying the Applicant.

The 50:50 presumption can be displaced in certain circumstances such as where the home was inherited by one spouse or where the marriage  was of a short duration.

TRANSFER TAX & STAMP DUTY NOW 5% & 4% RESPECTIVELY AS AT APRIL 1, 2013

The repreive offerred in 2009 is now at an end. Beginning April 1, 2013 Transfer tax will be 5% of the market value of the property being transferred. Stamp Duty also inched up to 4% of the sale price. These increases will now eat into the pockets of vendors and purchasers and may impact on rates charged by professionals such as Attorneys and Realtors as individuals and firms seek to lessen the burden on their wallets.

The increases were part of pre conditions by the International Monetary Fund before the country could benefit from a loan facility. Other areas of the revenue were also tweaked.

Property tax ballooned by 150% and tax waivers, for the most part, have been scaled back.

100% TAX AMNESTY ENDS JULY 31,2008

The Minister of Finance and the Public Service, the Honourable Audley Shaw has approved an extension of the 100% waiver of interest and penalty to July 31, 2008.  Persons with taxes outstanding on or before April 11, 2008, now have an additional month to pay their taxes owed to get the full 100% relief from interest, penalties and other charges.

The extension in the 100% waiver is in response to requests from primarily the business community who appealed to the Minister to allow more time for them to make appropriate arrangements to clear their outstanding liabilities.  Also based on the overwhelming response to the 100% waiver offer, persons operating outside the tax system have also indicated the need for additional time to prepare their returns and to regularise their operations, as they seek to benefit from the relief on charges.

Taxpayers will therefore have more time to reconcile their records with the information available in the tax departments without losing the opportunity to benefit from the 100% relief.

It should be noted that the period of the amnesty still ends on October 31, 2008.  Payments made by July 31 will now get a 100% waiver instead of the previous 80%. However, the relief of interest and penalties to be granted in subsequent months remain the same.  Waiver on payments made by August 31 remains at fifty percent (50%); by September 30 remains at forty percent (40%); and by October 31 remains at twenty percent (20%).

Taxpayers who have amounts outstanding for Property Tax, General Consumption Tax (GCT), Special Consumption Tax (SCT), Contractors Levy, Income Tax (PAYE, Corporate, Individual), Education Tax, Transfer Tax, Stamp Duty, and Asset Tax are urged to take advantage of the extra time and pay their outstanding principal amounts by July 31 to get the 100% relief from all charges being offered under the Tax Amnesty.

 NHT OFFERS CLUSTER LOANS

Beginning April 1, 2008 the NHT will be offering a new product called a cluster loan. Essentially this new facility allows nine (9) individual applicants or eighteen (18) co applicants to apply to purchase a parcel of land suitable for subdivision into 9 lots.

Applicants can also use the joint Finance program to access this service. The usual documents supplied in processing a house lot must be provided to the Trust together with a letter from the relevant Parish Council inidcating that the land may be subdivided.

NHT INCREASES LOAN LIMIT

Update May20, 2013 : If you have been a regular contributor to the NHT and are now in the process of purchasing a home or a parcel of land you may apply for a contribution refund loan towards your deposit (CRTD). The NHT will issue a letter to the vendor's Attorneys indicating the amount you are qualified to receive under the scheme. In turn the Attorney should issue an undertaking to the Trust to the effect that if the transaction is cancelled the CRTD will be returned to the NHT. For persons who may have a difficulty with amassing the entire deposit the CRTD can be a helpful tool in achieving your home ownership goal.


Update January 1, 2012: The maximum loan amount to any one individual is now $4.5M.


The Prime Minister recently announced, in a speech to mark the 30th anniversary of the NHT, increases in the loan limits accessible through the NHT. These increases come into effect at the start of the new financial year, April 1, 2006.

The increases are as follows:

1. Scheme, Open Market, and Building on Own Land benefits
The loan limits for Scheme, Open Market, and Building on Own Land benefits will increase from $1.5 million to $3million per applicant. This means that two applicants coming together to purchase a unit can obtain $6 million.


2.Serviced Lot/ House Lot

The loan limits for a Serviced Lot and House Lot move from $600,000.00 to $1 million and with two applicants, it moves from $800,000.00 to $1.6 million.

3.Home Improvement

The loan limits for home improvement for single applicants move from $600,000.00 to $1 million and with two applicants, it moves from $1.2 million to $2 million.

* Revision of the eligibility criteria to apply for an NHT loan which at present entails applicants having to account for and pay up with interest, contributions due in the last seven years. This has now been reduced to three years.

* Currently contributors are entitled to one benefit in their life time. Considerations are being given to two new initiatives which will benefit persons who received loans at least fifteen years ago, namely:

o The Home Enhancement Loan Plan (HELP) which allows for repairs to residential properties owned by contributors; and

o The Home Ownership by Exception (HOPE) initiative which entitles contributors who have received a loan, but who are now no longer home owners to access another loan.

* Access to construction loans after the expiration of seven years, will be changed to accommodate applications at any time.


AMNESTY PERIOD FOR TRANSFER TAX ON ESTATES ENDS SOON!!

In April of 2005 the Minister of Finance announced a new amnesty measure aimed at increasing the compliance rate for the payment of transfer tax on estates. In doing so the method of calculating the tax was simplified and reduced to a flat rate of 7.5% for all estates with a value of at least $100,000.00. At the time of the announcement only estates of persons who died after June 1, 2005 could benefit from the new regime, however the scope was later widened to include all estates. Pre June 1, 2005 estates can only access this amnesty to the end of December 2005. After that date the taxpayer will be required to pay the estate tax based on the old rate which could be as high as 15% depending on the value of the estate. The assessed amount will also attract interest at the rate of 6% per annum until paid.

e&oe


Property tax

The system of property tax assessments has been simplified though some might say that it has resulted in a more or less increase in the rates.

As at April 1, 2005 the new system calls for a threshold of $300,000.00. Up to that mark there will be a flat rate of $600.00. Thereafter the rate will be 0.5% of any amount in excess of $300,000.00


Adverse possession possible against joint tenant

In the landmark Privy Council decision of Wills v Wills (Dec 1, 2003) the court ruled that in the particular circumstances of the case a wife who had discontinued her possession of both the matrimonial home and another rental property jointy owned by herself and her ex husband could be dispossessed of her title after a period of twelve years. In other words, she could lose her title by the operation of the principle of adverse possession.

The facts of that case were peculiar because the ex wife had abandoned her husband in or about 1976 and had also discontinued any semblance of attachment to the two properties in dispute. The husband eventually divorced her in 1985 but even before then co-habited with another woman who later became his wife. During the period of co-habitation both dealt with the property as if it was their own such as collecting the rent and using it to the exclusion of the ex wife. They were ostensibly the owners of the property. The ex wife was even treated as a guest on the few occasions she returned to Jamaica. The court ruled that the state of mind or the intent of the exwife regarding her reliance on the principle of survivorship was irrelevant. What was important was the actions of her ex husband and his intent to disposses her. In the end the court held that his widow was entitled to the sole ownership of both properties in dispute. This case was applied in the Jamaican Supreme Court of Shand v Shand delivered on April 8, 2010. The Court held in that case that a wife had dispossed her husband who had abandoned the matrimonial home for 23 years.


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