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

What is a Deed Poll?

Posted on by Balcostics Law

There are several reasons one may desire to have a name change. These include restoring a family surname that has been changed in the past, to change the spelling of your name or simply because you dislike your current name. To have this name change legally recorded, a Deed Poll will be required.

A Deed Poll is a legal document that allows an individual to assume a new name and provides documentary evidence of the name change. You can contact an Attorney-at-Law to draft this document on your behalf.

The Deed Poll is required to get all your documents and records (e.g. bank accounts, passport, driver’s licence) changed to reflect your new name. Persons over the age of 18 years can conduct a deed poll on their own behalf. For minors, a deed poll can be done if both parents give the consent to do so.

5 steps to obtaining a deed poll:

  1. You will need a certified copy of your birth certificate and/or marriage certificate and a valid photo identification.
  2. Visit your Lawyer to have the Deed Poll drafted and this is to be signed before a Justice of the Peace (JP).
  3. The Deed Poll is required to be stamped at the Stamp Duty and Transfer Tax Department.
  4. The document is then submitted to the Registrar General Department for recording which takes 3-30 business days (depending on the service that is paid for).
  5. You will then receive a certified document recording the name change, with your birth certificate attached.

It is important to keep your Deed Poll safe because if you need to prove your identity in the future, for example, you want to get married or apply for a passport, you will need to produce your Deed Poll together with your birth certificate.

About Author:

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

Tel: (876)964-4046
Whatsapp: (876)805-6688
Email: law@balcostics.com

Examining Rental Security Deposit

Posted on by Balcostics Law

Many persons are familiar with the common practice of landlords charging one or two months’ rent as a security deposit before the tenant is given possession but is this practice legal?

This topic of security deposit has been a controversial one for many years. The Rent Restriction Act (“RRA”) which was last amended in 1983 governs controlled premises in Jamaica. Section 24(1) of the RRA stipulates that “a person shall not, as a condition of the grant, renewal or continuance of a tenancy of any controlled premises… require the payment of any fine, premium or other like sum or the giving of consideration in addition to the rent…”

Continue reading Examining Rental Security Deposit

Part 3: Registering a Company

Posted on by Balcostics Law

We conclude our series by reviewing the procedures required when incorporating a company. The registration of a company is fairly intricate and requires meticulous attention to details.

Reservation of Company Name

Once you have decided on what you will name your company, it is advisable to reserve said name. The reservation of the name will establish that the name is appropriate and available for use. It also protects the name from being used by others during the 90 days it has been reserved. The fee is $500 for the Name Search and $3000.00 for the Name Reservation. Upon completion of the process, you will be issued with a letter advising that the name is reserved for a period of Ninety days.

Determine the Type of Company to Incorporate

Let’s examine the types of company you can incorporate in Jamaica. Section 3(2) of the Companies Act (2004), states the three types of companies that can be formed:

  1. “a company limited by shares” – having the liability of its members limited by the articles to the amount, if any, unpaid on the shares respectively held by them
  2. “a company limited by guarantee” – having the liability of its members limited by the articles to such amount as the members may respectively thereby undertake to contribute to the assets of the company in the event of it being wound up
  3. “an unlimited company” – not having any limit on the liability of its members

Submission of Documents

The Articles of Incorporation (Forms 1A or 1B) along with the Business Registration Form are required with necessary certifications and government issued identification. Form 1A is used for Companies Making Profit while the Form 1B is for Non-Profit Companies (Churches, Charities, Foundations. Service Clubs etc.). The cost to register the company is $24,500 which includes the stamp duty fee.

Pros of registering a Company:

  1. Liability of members limited to the extent of the unpaid shares (as some shares which are issued are partly paid)
  1. There is greater opportunity for raising capital by way of Investments e.g. Venture Capital or Angel Investors
  1. Perpetual Succession – company has perpetual succession unless it is wound up. The company doesn’t die with the owners.
  1. Company can sue and be sued in its own name

Cons of registering a Company:

  1. Loss of control: This is more so for public companies
  2. Less Privacy: There are more statutory obligations like filing annual returns and accounts etc.

About Author:

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

Tel: (876)964-4046
Whatsapp: (876)805-6688
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

A Father’s Rights to Child Custody and Visitation

Posted on by Balcostics Law

June 17, 2018 is Father’s Day and I thought it quite timely to discuss the matter of child custody. In Jamaica, there is a perception that mothers are the main caregivers and in cases where parents separate/ divorce, mothers usually believe they should get sole custody of the child and in some acrimonious instances, refuse the father from visiting their child/ children.

Continue reading A Father’s Rights to Child Custody and Visitation

Understanding the Subdivision of Land Application Process (Part 1)

Posted on by Balcostics Law

In rural Jamaica we are familiar with the common practice of land being gifted from one generation to the next. This land is often divided among family members where one person owns “di piece up a top” and another “di piece from di mango tree to the fence.”

This division of land is analogous to a subdivision – the process of dividing a parcel of land into a number of lots and obtaining individual titles (splinter titles) for each lot. All subdivisions must be approved by the relevant parish Municipal Corporation before the land can be divided into the various lots. The Manchester Municipal Corporation located on Hargreaves Avenue, approves subdivision plans for lands located in the parish.

Continue reading Understanding the Subdivision of Land Application Process (Part 1)

Help My Land Title Cannot Be Found!

Posted on by Balcostics Law

Many persons have had the misfortune of misplacing or destroying documents that are of high importance. Whether it was a passport, birth certificates, health cards or your land titles. Yes, even land titles get lost. Your land title is a document that state that you are an owner or part owner of a land, it shows proof that the land is yours. It would be expected that a document such as this would be kept in a safe and secure place so that no harm might come its way, but accidents do happen and there may be a need to replace a lost title.

Continue reading Help My Land Title Cannot Be Found!

Not married but living with your spouse? You may be in a Common-Law Relationship

Posted on by Balcostics Law

A common-law relationship is possibly the most prevalent form of committed relationship in Jamaica.  Many individuals opt out of walking down the aisle to marry their significant other because of fear of commitment yet their day-to-day activities is similar and in likeness to that of a married couple. The main fear indicated by many is the thought that if they live together and eventually separate, there will be no need for division of property. This is a common misconception as there are laws to protect parties who have been in a common law union.

Defining Spouse

Section 2 of The Property (Rights of Spouses) Act defines “spouse” as including a single man and a single woman who have been cohabiting together as if they were in law husband and wife for no less than five years. The term ‘cohabit’ is defined as meaning, ‘to live together in a conjugal relationship outside of marriage’.                                                  

Continue reading Not married but living with your spouse? You may be in a Common-Law Relationship