Unit 11 Land Laws of Jamaica  Derived from the statues and Common Laws of England Can be divided into:

1. Unregistered Land 2. Registered Land 3. Crown Land owned by the Government  For which the owner may prove ownership through a Common Law Title  Good title if supported by: I) Conveyance from a preivous proprietor with good title II) Undisputed possession for a statutory period of 12 years (60 years in case of Crown Land)  For which there is a Title registered at the Office of Titles  The Registration of Titels Act Persons who may apply to register land: i) ii) iii) Persson claiming to be the owner of the fee simple either in law or equity Guardian of infant / insane Person having Power of Attorney The Registrar of Titles is the Legal Custodian of all documents connected with registered land. Conveyancing Act Land Acquisition Act The Registration (Strata Titles) Act  Deals with unregistered land  The Act empowers the Government to acquire land in Jamaica for public purpose 1. Formed 1969 2. Law made it possible for a person to own and transfer the fee simple (i.e. the full legal ownership) of a unit (i.e. a holding) such as an apartment in a high rise building complex. The building complex must be at least two stories high and sub-divided into units one above the other. 3. Individuals may then buy and own single apartments known as strata lots 4. Owners of the various Strata Lots are in aggregate the corporate owners of, and exercise jurisdiction over the common property , i.e. the portion of buildings (such as swimming pools, landings, passage, etc)

Crown Land Unregistered Land

Registered Land

5. Law makes it mandatory for the corporation (i.e. corporate owners) to appoint an executive committee to exercise specific duties in respect of the operation and control of the complex. Among the mandatory duties of the executive committee is that of keeping the building adequately insured. 6. Usually the individual strata lot owners do not directly pay property tax, water rates and insurance. These are paid by the Corporation from a monthly maintenance charge imposed on the strata lot owners. Caveats > Entry made in the offices of the officer of a Registry or Court to prevent a certain stap being taken without previous notice to the person entering the Caveat [called the Caveator]. A warning or note of caution on a property's title. Usually that a third party such as an ex-spouse or government body, has some stake in the property.  Transfer Tax Act- Transfer Tax- 7.5% on the value of the land  $10000 relief where the value of the land is $150,000 Exemptions i) ii) iii) iv) Transfers of property by Government and Local Authorities Transfers to Government or local authorities of lands for purposes such as roadways and other reservations in sub-divisions Transfers by way of gifts to approved institutions of property exclusively for charitable purposes. Principal place of dwelling of spouses (Joint Tenancy or Tenany in Common)- in the event of death only.

Transfer Tax and Stamp Duty Act Relief

Stamp Duty

Certificate of Title

 Payment of Stamp Duty is governed by the Stamp Duty Act.  The stamp duty payable on land is approximately 5.5% of the full value of the land/ dwelling.  Once a property is registered it is given identification by way of Volume and Folio numbers in the Register Book of Titles.  The original title is kept at the Office of Titles and entries are made thereon whenever something affecting any interest in the land is brought to the attention of the Registrar of Titles e.g.. a transfer, a mortgage, death of part owner, grant of easement, etc.  The land owner gets duplicate Certificate of Title on registration. Duplicate certificate of Title has to be submitted to the Registrar for

endorsement of all transaction affecting the land. The Conveyance or Transfer Exercise  Commences wither between Vendor and Purchaser or between one of the parties and a Real Estate Dealer or Salesperson.  Purchaser or an Attorney should inspect the Duplicate Certificate of Title. The ususal form of Purchase Sale and Agreement sets out inter alia:1) Names, address and occupation of the parties 2) Description of the land- Stuff on the title In the case of land with a Common Law Title, size description, boundaries and other relevant details 3) Purchase Price- in the words and figues 4) Completion- when transaction is expected to be completed 5) Cost of transfer- each party should bear hald the cost of stamp duty, registration fee and attorney costs Payment of Real Estate Dealer s / Sales Person s Commission

Unit 10- Mortgages

Mortgage Mortgagor Mortgagee

 Form of security for the repayment of money lent  Party who conveys the property by way of security [BORROWER]  Lender who obtains an interest in the party [LENDER] If borrower fails to repay the ortgage, the lender has powers under the mortgage, or realizing the value of the mortgaged property, paying himself out of the proceeds. Mortgages can be made of freehold and leasehold interests  The right of a mortgagor in law to redeem his property once the liability secured by the mortgage has been discharged.  Right to redeem property following default on a mortgage by paying the unpaid debt plus interest and costs prior to the foreclosure sale. Without paying off the mortgage, the borrower can sell, lease or devise his interest, even mortgage it.

Equity of Redemption

Mortgager has two rights to redeem his property 1) Contractural right on the date specified in the deed 2) Equitable right to redeem at anytime thereafter paying and giving notice to mortagee. Right does not come into effect until date fixed on mortgage has passed. Process of curtailing the equitable right to redeem and so leaving the mortgagee with a fee simple is known as foreclosure  Mortgages provide for the repayment of the loan on a specified date. Failure to redeem means that the legal right of the mortgagor to extinguish the mortgagee s rights had gone forever and mortgagee could sue.  This did not appeal to equity, the courts evolved a rule that the mortgagor could redeem the mortgage by paying back the mortgage devbt and all interest on it anytime before the mortgagee sold or foreclosed.  The right of the mortgagor to redeem after the due date is the equitable right to redeem.

 The equity of redemption refers to the right of a mortgagor in law to redeem his property once the liability secured by the mortgage has been discharged.  Form the start of the mortgage, the mortgagor has been possessed of a species of equitable interest known as the equity of redemption.  This interest is a bundle of equitable rights, including the right to redeem.

Position and Rights of the Mortgagor

1. The Equity of Redemption 2. Rights of a Mortgagor who remains in possession

The Equity of Redemption

 A mortgager is the owner of equity of redemption  Right is INVOIDABLE  The mortgagee can t include in the deed anything that takes away completely the mortgagor s right to redeem, or which postpones it indefinitely  There must be No clogs or fetters on the equity of redemption the mortgagee can t include anything that completey takes away the mortgagor s right to redeem or postpones it too long to make it worthless. Nor can he impose a condition which will carry on even after the mortgage has been redeemed.

Rights of a Mortgagor who remains in possession

 In the eyes of equity, the mortgagor remains the true owner of the property AND as long as he remains in POSSESSION, he is entitled to rents, profits without liability to account from them The mortgagor has the right to grant valid leases.

Effects of Death of a Mortgagor

 On death, the wquity goes through his personal representatives to persons entitled on intestacy or will  The mortgagee s remedies are not affected by the death of a mortgagor.

Position and Rights of the Mortgagee

 The mortgagee s rights and remedies are given to him for one purpose only- to secure his principal and interest. 1. Power of Sale 2. Foreclosure

3. Appointment of a Receiver 4. Possession 5. Right to Sue on Personal Covenant Application of Purchase Money Power of Sale  Power expressed or inplied in a trust agreement permitting the trustee to sell the investments comprising the trust.  The power arises as soon as any installment is due and unpaid.

 In DOES NOT become exercisable until: 1) Notice has been served on the mortgagor asking for repayment and the money has not been repaid within 3 months. If there is more than one mortgagee, the notice should also be served on other mortgagees. 2) Some interest is in arreasrs for two months or more 3) Breach of covenant in the mortgage deed other than covenant to repay principal and interest.  A mortgagee may sell the mortgaged property at anytime after the power of sale has arisen even before it is exercisable, but the mortgagor will have a right of action in damages against the mortgagee.

 When exercising his power of sale, mortgagee need only act reasonable. He is NOT bound to sell for the best price, as long as its in good faith. Once sold, he becomes a trustee of the proceeds of sale and after paying off the outstanding debts due to himself then to other mortgagees

 Mortgagee can sell when he likes, this can yield a surplus for the mortgagor the purchase price is only sufficient to discharge the mortgage debt and the interest owing to it. Foreclosure  A foreclosure puts an end to the equitable right to redeem  Destroys the equity of redemption  Right to foreclosure can t arise until the legal date for redemption has passed, only then does the equitable right arise

 Vests in the mortgagee the fee simple and extinguishes the moortgagee s mortgage term and other subsequent mortgages.  E.g. Four mortgagees of the fee simple A, B, C, D. in that order. If A forecloses, the unencumbered fee simple vests in him because all subsequent mortgages are extinguished.  If C forecloses, he only extinguishes D s mortgage, those of A and B remain and he must redeem those mortgages by paying off A and B if he wishes to have the property unencumbered (no loan or mortgage secured against the property).  Subequent mortgagees must be made parties to the action and are also given the opportunity to redeem the mortgage of the foreclosing mortgagee. THEREFORE in the example with A, BCD could pay off A and redeem A s mortgage, thereby preventing their own mortgage from becoming extinguished. redeem up, foreclose down Appointment of a receiver  Power rises and becomes exercisable in the same circumstance as power of sale  POS useful to protect the principal loan.  Mortgagee may fear that the immediate sale is not enough to pay off the mortgage in full  More convenient to appoint a reicever who although selected by the mortgagee, is deemed to be an agent of the mortgagor, thus the mortgagee can t be made financially responsible for any of his blunders.  Power to appoint a receiver may be contained in deed. The appointment and removal of a receiver must be effected in writing.  When receiver appointed, the collection of rents and profits are taken out of the hands of the mortgagor. He must first notify tenants of this.

Possession

Right to Sue on Personal Covenant

 A mortgagee will NOT normally wish to take possession unless his security is in jepordy, prior to exercising power of sale as he can offer vacant possession to any purchaser  Every mortgage deed contains a covenant or contract by the mortgagor to repay the money he has borrowed.  Mortgagee can sue  An action to recover the principal sum is barred unless it is brought within twelve years from the date when the right to receive the money accrued. Once right to recover is statute barred, he looses his status as

Registration of Ttitles Act Application of Purchase Money

mortgagee. Section 103-125 deals with mortgages Purchase money arising from the sale of land shall be applied as follows: 1. Payment of expense of, and incidental to such sale. 2. Payment of moneys which may be due or owing on the mortgage 3. Payment of subsequent mortgages in their order of priority, and if surplus, shall be paid to the mortgagor.