Understanding Real Estate Valuation

Posted on by Balcostics Law

I’m often asked, “how much should I sell my property for?”. It is advisable that all sellers and purchasers of properties obtain a current valuation (report) of the property from a certified valuator/appraiser in order to determine the current market price at which the property should be sold.

A valuation report or a real estate appraisal is a written report, independently and impartially prepared by a certified appraiser justifying his/her opinion as to the market value of the property.

If the purchaser is relying on a mortgage, the financial institution granting the mortgage loan will require a valuation in order to ensure that the value of the property exceeds the value of the mortgage loan. This valuation report should not be more than one (1) year old.

Although the content of real estate valuation reports varies depending on the type of property being appraised, reports generally contain the following information:

  1. The purpose of the appraisal being sought and the appraiser’s terms of reference
  2. Certification of report
  3. The market value of the property
  4. a description appropriate for the type of the property being appraised including, but not limited to: address, map reference, copy of a survey or map and property photographs
  5. the appropriate land use regulations, zoning and other restrictions that may affect the market value of the property

If you are considering to sell your property, it is important to obtain a valuation report from a certified Appraiser.

About Author:

Abi-Gaye White-Thomas B.A., LL.B (Hons)
Attorney-at-Law
Manchester, Jamaica

Tel: (876)964-4046
Whatsapp: (876)827-8050
Email: law@balcostics.com

Can a Hotel be liable for injuries sustained while you are a Guest?

Posted on by Balcostics Law

Beach, food and entertainment are all guests think about when on vacation but at times, there are unfortunate cases of injuries sustained while on vacation. Typical resort injuries may involve swimming or diving accidents, slip-and-fall injuries, elevator mishaps, fires, and shuttle accidents. 

Hotels and resorts have a responsibility to keep their properties safe and free of hazards. When guests stay at a resort or hotel, it is expected that the grounds, provided transportation, and amenities are safe and free from danger. Hotels and resorts have a legal duty to warn guests of known dangerous conditions on the premises and to protect guests from known dangers and hazards.

Under the Occupiers Liability Act, there is a common duty of care imposed by section 3(2) which states: “the duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”

Additionally, Section 3(3) explained that the occupier must also be prepared for children to be less careful than adults. As such, it will not be a defence for an occupier to say that a child refused to sit still thereby causing his own demise, if the occupier did not take any step to remove objects or conditions which would be inherently hazardous to children.

Furthermore, the resort is not absolved of liability in respect of injury to a guest merely because the guest was warned of the danger. Section 3(5) of the Act requires that the warning must in all circumstances be “enough to enable the visitor to be reasonably safe”. A warning may be verbal or written. In a decided case, the Court found that 12 clear “Caution-Wet Floor” signs which were placed around a wet area in an airport, the signs being reasonably positioned (not too low or too high), were sufficient warning to make the premises “reasonably safe”. The Court, therefore, found that the sole cause of the injury to the Claimant who slipped on the premises was her failure to do what was reasonable to safeguard herself.

About Author:

Abi-Gaye White-Thomas B.A., LL.B (Hons)
Attorney-at-Law
Manchester, Jamaica

Tel: (876)964-4046
Whatsapp: (876)827-8050
Email: law@balcostics.com

Part 2: Starting A Partnership

Posted on by Balcostics Law

This week we continue our series on starting a business in Jamaica by examining PARTNERSHIPS. A partnership is two or more persons carrying on a business in common with a view to profit. When choosing partners, ensure that they are persons who are trustworthy and will act in the best interest of his/ her fellow partner(s).

The Partnership agreement:

The signing of a partnership agreement is crucial as it will provide guidelines for the firm. This agreement should clearly identify partners’ rights, duties and responsibilities and address matters such as retirement and succession policies. In this agreement, partners should indicate the type of partnership.

Types of partners include:

  1. General partners – these are most common,
  2. Salary partners – they have no share in the firm as an equity partner but is still held out as a partner and so can still be liable.
  3. Dormant or sleeping partners – takes no active part in the management of the business
  4. Corporate partners – a registered company can be a partner once there is nothing in express or implied terms that preclude membership.

To register a partnership, you must submit The Business Registration Form (BRF 1) to the Companies Office of Jamaica and the registration fee is $2,500 for 2 to 5 partners and $5,000 for 6 to 20 partners.

Advantages of a partnership over a company:

  1. Absence of formalities- the formation and dissolution of a partnership is simpler.
  2. Lower cost for registration and privacy of financial matters
  3. No requirement to file annual returns

Disadvantages of a partnership over a company:

  1. The major disadvantage is that there is no separate legal entity that can be sued and held liable for the debts and losses of the partners.
  2. As with a sole trader, partners are personally liable, to their last dollar, jointly and severely, for all partnership debts, losses, & damage arising from a wrongful act or omission of any partner acting in the ordinary course of the business of the firm.

About Author:

Abi-Gaye White-Thomas B.A., LL.B (Hons)
Attorney-at-Law
Manchester, Jamaica

Tel: (876)964-4046
Whatsapp: (876)827-8050
Email: law@balcostics.com

Starting A Business: Sole Trader and Registration of Business Name

Posted on by Balcostics Law

According to the World Bank Doing Business Report for 2018, Jamaica is ranked number 5 in the World for ease of starting a business. The Companies Office of Jamaica should be commended for continuously improving its procedure.  Over the next few weeks we will examine the various legal structures and factors influencing Entrepreneurs’ choice of registration.

Registering a business as a sole trader is the easiest form of registration in Jamaica. The Registration of Business Act stipulated in section 3(1) that this registration is for any individual or firm buying or selling goods from an established address or any individual or firm offering services from an established address in a name other than its/their own, for example: Joan Pitters offering services in her name need not be registered. However, Joan Pitters operating as Joan’s Meat or Joan Pitters & Associates must be registered. A business name will not be registered if it is identical or too close to the name of an existing trader, individual or firm registered under the Business Names or Companies Act 2004.

There are both advantages and disadvantages of registering a sole trader.

Advantages:

  1. Absence of formalities in the organisation of the business
  2. Absence of regulation, lower cost ($2,500jmd) and privacy
  3. No requirement to file annual returns

Disadvantages:

  1. Personal liability for all debts incurred. Because the sole proprietorship is in essence the proprietor, there is no distinction in law between so called business assets and personal assets. Likewise, there is no distinction between business debts and personal debts.
  2. Limited options for financing opportunities- the organisational structure of the sole proprietorship provides no mechanism by which other investors may participate in the business. Therefore, one cannot sell shares to raise capital for the business. The only source of financing other than him/herself would be through bank loans or grants.

The Business Registration Form (BRF1) otherwise called the “Super Form” is used for registration. If you are unsure about the best legal structure for your business, contact an Attorney-at-Law for guidance. Registration of your business is imperative to operate legally within the jurisdiction.

About Author:

Abi-Gaye White-Thomas B.A., LL.B (Hons)
Attorney-at-Law
Manchester, Jamaica

Tel: (876)964-4046
Whatsapp: (876)827-8050
Email: law@balcostics.com

Encroachment on Adjoining Property

Posted on by Balcostics Law

Many of the land disputes heard in the Manchester Parish Court has to do with the issue of encroachment. Land encroachment means that one person ‘advances’ or violates his boundary limits by building something on the neighbour’s land or allowing something to hang over the adjoining property boundary. An example of an encroachment is the construction of a dividing fence or wall that is not within the correct registered boundary of the property.

Continue reading Encroachment on Adjoining Property

“What’s Yours Is Mine, What’s Mine Is Mine” – The issue of Matrimonial Property

Posted on by Balcostics Law

During a divorce or separation, the question of matrimonial property division often arises as couples tend to argue about who spent more money when building the house or paying the mortgage and would therefore be entitled to be a bigger stake of the house. Matrimonial Property is defined in the Property (Rights of Spouses) Act (PROSA) as “any real or personal property, any estate or interest in real or personal property… or any other right or interest whether in possession or not to which the spouses or either of them is entitled.” From this definition, it is clear that property is not defined to mean only the family home. The only thing the law has done in relation to the family home, and not in relation to other property, is the presumption that that there be the automatic application of equal division or the “50-50 rule” unless good grounds exist to warrant a deviation from it (section 6 of the Act).

Continue reading “What’s Yours Is Mine, What’s Mine Is Mine” – The issue of Matrimonial Property

Seeking child support in Jamaica: What You Should Know

Posted on by Balcostics Law

It is probably a logical conclusion to assume that once a child is born, the persons who have come together to create a life should endeavour to provide for that life. This however is not the case and unfortunately many children simply are not given the financial assistance they require for their growth and development from both parents.The law is straightforward when it comes to this subject.

family

Under the Maintenance Act (2005), every parent has an OBLIGATION to maintain the parent’s unmarried child who- (a) is a minor; or (b) is in need of such maintenance, by reason of physical or mental infirmity or disability. It is important to note that the grandparents may also have this duty in the event of the failure of the child’s parents to do so owing to death, physical or mental sickness or disability.

Once a parent neglects his or her responsibility to the child, you should not be afraid to seek maintenance for that child. Below are six steps in applying for maintenance:

  1. An application for child maintenance can be made at the Manchester Parish Court located at 2 Parks Crescent in Mandeville or any other Parish Court across the island. It is recommended that you ask an Attorney-at-Law to file the application on your behalf but you can also do this on your own.
  1. If you are applying on your own, speak to the Clerk of Courts who will process the documents.
  1. The court will issue a summons (a court document instructing a person against whom the claim is brought) informing them of the date they should attend court to hear the matter. Also included in the summons will be how much the applicant is requesting as payment for child maintenance.
  1. The summons is served on the individual. If the person cannot be located, then the matter will not be able to go before a Judge. However, if the summons is served and the person refuses to attend court on the date specified in the summons, then a warrant will be issued for their arrest.
  1. Once the summons has been served, both parents should appear in court on the appointed date and present their case before the Judge.
  1. The Judge, in considering the best interests of the child will proceed to make an order regarding maintenance and the amount which should be paid, how it should be paid, and when it should be paid- weekly, fortnightly or monthly.
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Don’t be afraid to seek Maintenance in the best interest of your child.

Written by: K. Whittaker

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