Kingston, Jamaica, 10 May 2020. A property owner writes with a situation that begins simply: she bought a property jointly with another party through the NHT, both received individual mortgage amounts to repay, and the other party subsequently migrated, remarried, and stopped paying their portion. She has been covering both mortgages to avoid losing the property. She asks whether she can lodge a caveat against the title to recover her costs, either while she is alive or through a will.
The answer the legal column provides is clear about what she cannot do: she cannot make a will about a jointly owned property in a way that functions as she intends. When property is held in joint tenancy, as most NHT co-purchases are structured, the death of one joint tenant does not transfer their share through a will. It transfers it automatically to the surviving joint tenant, by operation of law. The deceased’s will, however carefully drafted, does not reach that interest. The right of survivorship extinguishes the testamentary route entirely. The only way to change that outcome is to sever the joint tenancy and convert the ownership into a tenancy in common before death, at which point each party’s share can be disposed of by will. That severance requires a formal legal act, not an informal understanding.
The practical advice she receives, to go to court now, while she is alive and capable of conducting the proceedings, is exactly right and is worth amplifying for the many Jamaicans who find themselves in structurally identical situations. The application she needs to make is for a declaration that she is the beneficial owner of the entire property, on the grounds that the other joint owner has abandoned their interest, and that as a matter of equity, the person who has been making all the mortgage payments while the other party has enjoyed the benefits of zero obligation should be recognised as the sole beneficial owner. Courts have the power to grant this relief and the evidence available to her, the payment records, the NHT loan history, and the documented absence of any contribution from the migrated party, is precisely what such an application requires.
The situation she describes recurs with significant frequency in Jamaica’s housing market. The NHT’s joint mortgage product was designed for couples and co-purchasers who intend to share both the ownership and the obligation for the life of the loan. It does not have a built-in mechanism for the scenario where one party migrates, loses interest, or simply stops paying. The obligations on the loan document do not diminish when one party walks away. The other party must either absorb them or risk a forced sale by the Trust. In practice, most people in this position do what this writer did: they pay to protect the asset, because the alternative, losing the property to NHT recovery action, is worse than the additional burden of a second mortgage payment.
The legal resolution is straightforward in principle but requires the will to act and the resources to retain a lawyer. Neither should be taken for granted. Many Jamaicans in this situation have not sought legal advice because they assumed the process would be too complex, too expensive, or too uncertain. Some have waited until the other party’s circumstances change, the partner returns, the estate of a deceased co-owner creates a new set of competing claims, and the straightforward situation has become much more complicated. The advice to act while circumstances are clear and evidence is fresh is not bureaucratic caution. It is the difference between a resolution that takes months and one that takes years.
For the NHT, this category of case represents a product design question worth revisiting. A joint mortgage arrangement that has no mechanism for handling the departure of one co-borrower without requiring the remaining party to absorb years of litigation, legal costs, and double mortgage payments before getting their name cleared on the title, is a product that creates a specific kind of harm for people who were doing exactly what the housing system asked of them: buying a home, paying their mortgage, and trying to build stability for their families. Addressing that design gap does not require dismantling the joint mortgage product. It requires building a pathway for managing the cases where the joint arrangement breaks down.
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