Articles

Using Protection Orders to limit Domestic Violence

The month of October is Domestic Violence Awareness month. With recent reports of heinous crimes among partners, it’s timely for us to examine possible legal measures to mitigate and prevent domestic violence. As such, we will review what is a “Protection Order”, and how it can be utilized in circumstances of domestic violence.

Continue reading Using Protection Orders to limit Domestic Violence

Understanding Real Estate Valuation

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?

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

Back to School: Reviewing Child Maintenance

With the commencement of another New School Year, issues surrounding which parent is responsible for the school fee, transportation and lunch money usually raise concerns for single parents seeking support.

The Maintenance Act (2005) explicitly states that 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.

It should be highlighted that ‘parent’ not only refers to a biological parent, it includes someone who has accepted any child as ‘a child of the marriage’, whether that child is a biological child of one of the parties to the marriage or not. This means that a stepparent have an obligation to maintain the stepchild whom he/she has accepted as a child of the family, while the couple is married and this obligation continues even if the marriage has ended.

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

  1. An application for child maintenance should be made at the Manchester Parish Court located at 2 Parks Crescent in Mandeville or any other Parish Court across the island.
  2. It is recommended that you retain the services of an Attorney-at-Law to file the application on your behalf but you can also do this on your own. If you are applying on your own, speak to the Clerk of Courts who will process the documents.
  3. 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.
  4. 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 his/her arrest.
  5. Once the summons has been served, both parents should appear in court on the appointed date and present their case before the Judge.
  6. 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.

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?

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)827-8050
Email: law@balcostics.com

Examining Rental Security Deposit

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

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)827-8050
Email: law@balcostics.com

Part 2: Starting A Partnership

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

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

Understanding Property Taxes

When conducting land transactions in Jamaica, such as the sale of property; transfer of property; first registration of land; and the subdivision of land, a certificate of payment of taxes is required by the Stamp Office or the Parish Council. Many persons are not cognizant of the penalties or the procedure to pay their property taxes. This week, we will examine some key points on this topic.

What you should know about property taxes

All residential and commercial properties are subject to tax in Jamaica. Property Tax is a tax levied on property owners to provide revenue for the provision of public & community amenities provided by the local government. It is charged on the unimproved value of the land.

The Property Tax Act gives the government the authority to charge property tax on all property in Jamaica. All property tax collected is required to be credited to the Parochial Revenue Fund, which is to be used by the government for the general maintenance of the parochial road network, including but not limited to, repairing damaged parochial roads, street lightening and garbage collection.

How to pay your property taxes

Property taxes are due annually at the beginning of each fiscal year. Payments can be made at tax offices island wide or online at www.jamaicatax.gov.jm/property-tax-query. Property owners have the right to pay in instalments (quarterly, half-yearly or in full). Quarterly by end of April, July, October or January. Half-yearly deadlines are by end of July and by end of January. The yearly deadline is by end April.

Property owners in Jamaica or overseas can now conveniently go online and check the status of their outstanding property taxes, once they have their valuation number and can access the E-payment portal. The E-payment portal accepts payment by credit cards.

Penalties

Numerous persons have been brought before the Tax Court in the Parish Court for failure to pay outstanding property taxes.  Under the Tax Collection Act, the tax collector may issue summonses for arrears and penalties owed, if persons fail to attend Court, a Warrant of Disobedience may result, where persons may be imprisoned for up to three (3) months or an Ex Parte order can be made.

Additionally, a caveat can be placed on the property which blocks the owner from transacting any business with the property (e.g. you will not be able to sell your property or even use same as collateral for bank loans etc.). The property can also be seized and sold to recover property taxes owed.

Failure to pay property tax on the date it becomes due will result in a penalty of 10% per annum, which will be added to the outstanding property tax.

Properties Exempt from Paying Taxes

The Property Tax Act provides exemptions for certain types of property including; buildings used for religious purposes, schools and hospitals etc.

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