Marivel Ebanks-Yates v Mireya Odalys Ebanks
| Jurisdiction | Cayman Islands |
| Judge | Richard Williams |
| Judgment Date | 31 May 2018 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO. G214 OF 2014 |
| Date | 31 May 2018 |
Hon. Justice Richard Williams
CAUSE NO. G214 OF 2014
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CIVIL DIVISION
Land Law — Joint Proprietorship — Registered Land Law does not prevent order being made for the sale of the entire property under the Partition Law
Mr. Laurence Aiolfi of Priestleys for the Plaintiff
Mr. H. Phillip Ebanks of Premier Group Solutions for the Defendant
This is the Plaintiffs (“P”) application, brought by an Originating Summons issued on 18 September 2014, for an order for sale of a property registered as Block 38B, parcel 463 Lower Valley (“the property”) pursuant to s.4 of the Partition Law (1997) Revision (“the Law”). The property is a three-bedroom single dwelling house set on .3 of an acre.
P is a joint proprietor of the property with the Defendant (“D”), who is her sister. The parties each have a half share in the property.
P relies upon the content of her affidavit sworn on 10 September 2014 in support of her application. D relies upon her affidavit sworn on 19 April 2018 and the affidavit of Nelly Ebanks sworn on 8 May 2018 in support of her opposition to the order sought. D's Counsel has made it clear that D no longer relies upon her unsigned and undated affidavit filed on 25 September 2015. D's Counsel confirms that D does not pursue her contentions contained in her September 2015 affidavit that P does not have an interest in the property as she was not born in the Cayman Islands and is not married to a Caymanian and that the Register is “out of date” and has no bearing on these proceedings.
On the first day of the hearing on 8 August 2016, I was conscious that D appeared in person. At the hearing, after the close of the P's evidence and early into the D's evidence, I became so concerned about D's mental health and her apparent inability to understand the issues, especially in relation to the law, that I adjourned the hearing part-heard to enable her to apply for Legal Aid and obtain representation.
At the Case Management hearing on 18 May 2018, issues in relation to further evidence touching on the merits of and factors to be considered in the application were raised. The parties agreed that the full hearing could not proceed, but that this hearing should instead be used to determine whether the Court had the jurisdiction to make the orders sought pursuant to the Law in light of s. 100 of the Registered Land Law (2018 Revision) (“the RLL”) and the Court of Appeal's ruling in Mums Incorporated and Thiam-Hong Tan v Cayman Capital Trust Company, B.V. Randall E.G. Randall [2000] CILR 131 (CA).
P and D were joint proprietors of the property with their father. Upon their father's death on 30 August 2008 his interest vested in the parties. P and D have since held the property in equal proportion, as joint proprietors. This is evidenced by the extract from the Cayman Islands Land Register dated August 2016.
The parties lived together in the property along with their elderly mother and D's 11-year-old daughter. In October 2008 it was agreed that Mr. Hoybia, D's boyfriend since 1996 and the father of D's child, could move into the property. P said that she agreed to this as she believed that his residing there would only be a temporary arrangement.
There was a breakdown in P's and D's relationship. For the purpose of the preliminary jurisdictional issue before me, I need not herein set out the detail of each party's evidence about the reasons for the breakdown.
P left the property in September 2011, six months after D and Mr. Hoybia had married. P currently resides with her other sister and with the parties' mother who eventually moved out of the property to join her there at the end of May 2013 due to health issues. P indicates that she has no benefit at all from the property, which she says is not being well maintained by D.
Under common law, although a joint tenant or a tenant in common could force a division of property 1, the Courts in England and Wales could not order a sale of co-owned property until the Partition Act 1868 (“the Act”) gave them that juridiction. 2 The Law is a replication of the Act and allows a co-tenant in proceedings to petition to obtain an order for the sale of the relevant property which may be a more workable remedy, especially where division of a property is inconvenient or impracticable. Both parties agreed at the hearing that the Law has not been repealed.
As there is no agreement about the sale of the property, P has applied for an order pursuant to section 4 of the Law. The Law authorises the Court to order a sale of the property in three separate and distinct situations 3. A primary intention of the Law is to:
“enable an unwilling co-owner to rid themselves of the shackles of co-ownership and have either a physical division of the property into aliquot parts among the co-owners or a division of the proceeds of its sale.” 4
Counsel for P made it clear that P's application is made pursuant to S4 of the Law which provides:
“In a suit for partition, where, if this Law had not been passed, a decree for partition might have been made, then if the party or parties interested, individually or collectively, to the extent of one moiety or upwards in the property to which the suit relates, requests the Court to direct a sale of the property, and a distribution of the proceeds, instead of a division of the property between or among the parties interested, the Court shall, unless it sees good reason to the contrary direct a sale of the property accordingly, and give all necessary or proper consequential directions.”
As highlighted in P's written submissions, although the Partition Act was repealed in England and Wales by the Law of Property Act 1925, the English 19 th Century authorities are persuasive when considering the interpretation and application of
D, relying upon the decision in Mums, claims that P's action for sale of the property must fail as the RLL is “exhaustive on the issue.” P argues that the RLL is not exhaustive, as it contemplates that it may not deal with all matters. P contends that neither the RLL nor the Court of Appeal's decision in Mums provide a bar to her action brought under the Law, which the Legislature intended to apply in circumstances such as in this case as the Law, which was in force at the time of the RLL's enactment, has not been repealed.
The RLL establishes the registration system in the Cayman Islands and also deals with registrable rights, including those held in co-ownership. As highlighted by Dr. Simon Cooper in “ Conveyancing Law and Practice in the Cayman Islands” Third Edition page 14 and in his article “Partition of Land in the Commonwealth Caribbean” 2010 39 Common Law World Law Review 283 at 286, ownership in common and joint ownership are the available forms of co-ownership in the Cayman Islands as they are explicitly recognised in the RLL. The former type of ownership is more flexible as each owner has a separate share in the land and has the right to dispose of his share at will, although he would require the written consent of the other proprietor who could not refuse to give it if there are no reasonable grounds for doing so. However, we are dealing with the latter type of ownership in this matter, as the parties are registered as joint proprietors of the land and therefore they each have an equal but undivided share in the land, requiring that dealings with the land must be carried out by them both, unless one is transferring his interest to the other.
For the purposes of the jurisdiction issue before me the relevant sections of the RLL are:
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(i) Section 3 under the heading “Reconciliation with other laws”:
“Except as otherwise provided in this Law, no other law and no practice or procedure relating to land shall apply to land registered under this Law so far as it is inconsistent with this Law:”
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(ii) Section 37 (1):
“ No land, lease or charge registered under this Law shall be capable of being disposed of except in accordance with this Law, and every attempt to dispose of such land, lease or charge otherwise than in accordance with this Law shall be ineffectual to create, extinguish, transfer, vary or affect any estate, right or interest in the land, lease or charge.”
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(iii) Section 100 under the heading “Characteristics of joint proprietorship and severance thereof:
“Where the land, lease or charge is owned jointly, no proprietor is entitled to any separate share in the land, and consequently—
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(a) dispositions may be made only by all the joint proprietors; and
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(b) on the death of a joint proprietor, his interest shall vest in the surviving proprietor or the surviving proprietors jointly.”
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(iv) Section 164 under the heading “How matters not provided for in Law to be decided”:
“Any matter not provided for in this or any other law in relation to land, leases and charges registered under this Law, and interests therein, shall be decided in accordance with the principles of justice, equity and good conscience”.
Having regard to the meaning of “disposing” in s.37(1) RLL, the definition found at s.2 RLL provides that a disposition is:
“any act inter vivos by a proprietor whereby his rights in or over his land, lease or charge are affected…”
In Mums, Georges, J.A. when considering the two sections cited, applied the following dictum of Henry J.A in Paradise Manor Ltd. v Bank of Nova Scotia [1984–1985] CILR 437 at 468:
“By applying the definition of ‘disposition’ to s.37, the...
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