Homes For Sale In Jamaica Sales Contract Review

The typical sale agreements used when purchasing homes for sale in Jamaica must adhere to sepcific rules, regulations and statute in Jamaica law. We review these in this article to protect both vendors, purchasers and practitioners in the Jamaica real estate industry.

The following contracts need not themselves be in writing but will not be enforced by the courts unless a sufficient note or memorandum is available as proof of the agreement entered into.

(a) Contracts of guarantee - A contract of guarantee is made where one party, the guarantor, promises to answer for the debt, default or miscarriage of another person.

A guarantee must be distinguished from an indemnity, which does not require written evidence. In a guarantee, the guarantor undertakes to pay only if the person he is guaranteeing defaults in payment. The creditor must therefore seek a remedy against the principal debtor before he can sue the guarantor. A contract of indemnity is where the creditor may claim primarily from the person granting the indemnity without first seeking satisfaction from the principal debtor. Contracts of indemnity may be made orally except where the indemnity is given to a person supplying goods under a hire purchase agreement, in which case it must be in writing. These are typical in homes for sale in Jamaica.

(b) Contracts for the sale of land. The Law of Property Act, states that a contract for the sale of land must be evidenced in writing. The sale of land normally occurs in two stages, the contract to sell and the conveyance, where the title to the land is transferred to the purchaser. Whereas the contract need only be evidenced in writing, the conveyance must actually be in writing under seal.

The memorandum must contain:

• The names or a sufficient description of the parties;
• The subject matter and terms of the contract;
• The consideration (not necessarily in the case of a guarantee)
• The signature of the defendant or his agent.

The memorandum should be available at the time of the proceedings and if no one document contains the necessary details, it may be possible to combine two documents.

(c) If a contract does not comply with the above formalities it is unenforceable. There is, however, one important exception, that if a party to a contract for the sale of land has partly performed that contract, he may enforce it despite the absence of written evidence.

There are five conditions which must be satisfied before a party can rely on the doctrine of part performance:

(i) There must be proper oral evidence sufficient to convince the court that there was an agreement.

(ii) The contract must be specifically enforceable. It used to be disputed whether the doctrine of part performance could be applied to all contracts which were specifically enforceable, but now the doctrine is clearly restricted to land. (No attempt has ever been made to apply it to guarantees.

(iii) The act relied on as part performance must be carried out by the person seeking to enforce the contract.

(iv) The plaintiff has done some act of part performance which is referable to the contract.

(v) The act must be such as to render it a fraud on the plaintiff if the defendant could take advantage of the absence of written evidence. It will be a fraud on the plaintiff if he has seriously prejudiced his position in reliance upon the oral agreement.

Contracts which must be in writing

(a) Transfers of shares in registered companies;

(b) Bills of exchange, cheque and promissory notes;

(c) Assignments of debts and other contractual rights;

(d) An assignment of copyrights;

(e) Contracts of marine insurance;

(f) Certain hire purchase credit-sale and conditional sale agreements

It is important to note that, if not in writing, categories (a) to (e) are void and (f) is unenforceable.

We encourage anyone not to pursue or use any other type of agreement when attempting to purchase homes for sale in Jamaica.