Proceeds of Crime Act

What is an Account Monitoring Order?
This is an Order, made in accordance with Section 126 of the Proceeds of Crime Act, for the financial institution specified in the application for that Order to be required, for the period specified in that Order (which initially shall not be for longer than ninety days unless a further application for an extension of time is then made), to provide account information of the description specified in the Order, to an appropriate officer, in the manner and at the time or times specified in the Order. Such account information may include:- information as to all accounts held or transactions conducted within the specified period, by the person specified in the application for the Order; and/or a particular description of accounts held; and/or a particular account or transaction held or conducted.
Can the Court prevent a person’s use of his properties whilst Court proceedings are pending regarding an application for forfeiture of those properties, under and in accordance with the provisions of the Proceeds of Crime Act?
Yes the Supreme Court can do so, upon application having been made to it for a restraint order and can do so without giving prior notice to any person or persons who would likely be directly affected by the making of such order. However, once such an order has been made, a copy of the same shall be served on a person affected by that Order, in such manner as is prescribed by rules of Court. It is important to note though, that in order for a Court to lawfully be able to make such an Order, there are four specified bases in the Act and in the most likely to be often utilized of such, the Court must first be satisfied that one or the other of the following conditions is satisfied:- There is reasonable cause to believe that an alleged offender has benefited from his criminal conduct and - i) a criminal investigation has been started in Jamaica with regard to the offence, or ii) proceedings for the offence have been commenced in Jamaica, but not concluded; or iii) the enforcing authority has made an application under Sections 5, 20, 21, 26 or 27, which had not been determined, or the Court believes that such an application is to be made.

Intellectual Property

What is a trademark?
A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others and to indicate the source of the goods. In short, a trademark is a brand name.
What is a service mark?
A service mark is any word, name, symbol, device, or any combination, used, or intended to be used, in commerce, to identify and distinguish the services of one provider from services provided by others, and to indicate the source of the services.
Do I need to register my trademark?
No. However, federal registration has several advantages including notice to the public of the registrant's claim of ownership of the mark, a legal presumption of ownership nationwide, and the exclusive right to use the mark on or in connection with the goods or services set forth in the registration.
What are the benefits of federal trademark registration?
  1. Constructive notice nationwide of the trademark owner's claim.
  2. Evidence of ownership of the trademark.
  3. Jurisdiction of federal courts may be invoked.
  4. Registration can be used as a basis for obtaining registration in foreign countries.
  5. Registration may be filed with U.S. Customs Service to prevent importation of infringing foreign goods.
Do I need an attorney to file a trademark application?
No, although it may be desirable to employ an attorney who is familiar with trademark matters.

Real Estate

Do I need an Attorney to purchase or sell property?
It is advisable that both the purchaser and vendor retain the services of separate Attorneys to act on their behalf.
What is the Purchaser Attorney’s role?
The role of the purchaser’s Attorney is to protect the interest of the purchaser, which includes:
  1. negotiating an agreement which has terms and conditions which the Purchaser can fulfill and to advise him/her on the implications of those conditions.
  2. checking with the Titles Office for any existing Caveats, Mortgages, charges or other encumbrances and have them discharged where applicable.
  3. arranging for a surveyor’s identification report seeing to the transfer of the title to the purchaser.
What should a purchaser look for when a property is sold ‘as is’?
Before signing the agreement or agreeing to the price, a building contractor should inspect the building for defects, for example, cracks in walls, sunken areas in floors, leaking roofs, termites, rotting cupboards; plumbing & sewage problems, flooding and other problems
What are the features of the Agreement for Sale?
This legal document sets out the terms and conditions of the sale such as:-
  1. a description of the property
  2. particulars of vendor and purchaser
  3. sale price
  4. deposit
  5. date for payment of balance
  6. possession
  7. cash or subject to mortgage
  8. penalty for default, etc.
The agreement must be submitted to the Commissioner of Stamps and Estate Duties for Stamping within thirty (30) days after it is signed (late stamping attract a penalty of 100%).
When is a purchaser entitled to possession?
The Agreement For Sale usually provides that the Purchaser is entitled to possession on payment of all the purchase money and legal costs.
What costs are involved in purchasing/selling property?
The vendor and purchaser pays one-half of:-
  1. Stamp Duty-3% of sale price
  2. Attorneys fees for preparing agreement for sale
  3. Registration fee- $5.00 per $1000
  4. Miscellaneous fees - letters to utility companies
The vendor alone pays:
  • Transfer Tax—4% of sale price
  • The Real Estate Agent’s Commission, usually 5% of the sale price.
  • Each party pays his own Attorney-at-Law.
What is Tenants in Common Ownership?
Each owner has a distinct share in the property, for example 1/2 or 1/3, etc., and has the right to convey his/her interest in the property to others, or to give that share to his/her beneficiaries under a Will or if no Will, under The Intestates’ Estate and Property Charges Act. If one owner dies, the surviving owner does not automatically get the share of the deceased owner/s.
Who prepares the mortgage document?
The lender’s lawyer prepares the mortgage document which is signed by the borrower after which it is stamped and registered on the title at the Titles Office along with the transfer of title and any other relevant documents.
What documents are required by the lender?
The lender usually requires a signed copy of the Agreement for Sale; a Surveyor’s Identification Report; a Valuation Report; proof of Income/Credit Report; Property Insurance; title for property to secure loan; life insurance policy; current property tax and water rate receipts; salary deduction letter, etc.
What costs are incurred by the borrower?
Stamp Duty; Titles Office registration fee; Attorney’s fee; cost of valuation and surveyor’s reports; lender’s fees.

Estate Planning

What is an Estate?
An estate in its wider meaning denotes any property whether real estate, personal chattels or cash to which a person is entitled and competent to dispose of at the date of death.
What is Estate Planning?
Organizing the orderly disposal of one’s estate at the date of death in keeping with one’s wishes with a view to minimizing or eliminating estate taxes, duties and testamentary expenses and also, settlement of liabilities after death.
Why is making a Will important?
It gives the person making the Will the opportunity to appoint executors/trustees, to decide how he wishes to dispose of his properties and to name the beneficiaries who he wishes to inherit his estate.
When is a Will valid?
A Will is valid if it is in writing, and is signed by the Testator (the person making the Will) in the presence of two or more witnesses who must sign in the presence of the Testator and of each other. (Section 6 of the Wills Act).
Who can make a Will?
Any person who has attained the age of eighteen (18) years and who is of sound mind, memory and understanding.
Does property owned jointly by the deceased and at least one other person form part of his/her estate?
No. This property would not form part of the estate of the deceased, as the property would pass directly to the surviving owner(s).
What are the executor’s duties?
The executor’s duties include:  
  1. Applying to the Court for a grant of Probate of the Will.
  2. Collecting the assets of the estate.
  3. Settling the liabilities of the estate.
  4. Administering the estate in keeping with the terms of the Will.
  5. Acting as Trustees in relation to the legacy of minor beneficiaries or as the Will directs.
Do I need an Attorney to make a Will?
It is important that professional advice be obtained in relation to the preparation of a Will. Sometimes it is after a person has died and the Will is taken to a lawyer that defects in the Will are discovered.
What does it mean to die intestate?
This means that person has died without making a valid Will.
How can a Will be revoked?
A Will may be revoked by execution of a later Will; entering into marriage after making the Will; destroying the Will.
What happens if there is no Will and the deceased had children under the age of 18 years?
Where the deceased is survived by minor children the Administrator General Act provides that the Administrator General must act as the Administrator of the estate.
On the death of an individual, are taxes payable on the properties he/she owned?
Yes. Transfer tax is payable on his/her interest in Real Estate and Shares owned solely, jointly or as tenants in common at the date of death, calculated on the market value of these properties after deducting any debts secured by mortgage or charge and funeral expenses.
What is the rate of the Transfer Tax on Death?
When a person dies, Transfer Tax at the rate of 1.5 % of the net market value of all securities such as stocks, shares, debentures and of all real estate owned by the deceased at the time of death, where the net market value of the Estate exceeds $100,000.00 is due within one (1) year of the date of death of the deceased. Additionally, interest at the rate of 6% will accrue if the tax is not paid within 1 year of the date of death.
Are there instances in which assets are exempt from transfer tax on death?
Yes. (1) Property which was the principal place of residence of the deceased and certain family members up to the date of death will be exempt. (2) Personal chattel, Life Insurance Policies, bank accounts and cash are also exempt.
Are there other expenses to be considered?
Yes. Stamp Duty is payable to the Government on an application for Probate or Letters of Administration calculated on the net value of the estate. Also, legal fees on applications for Probate or Letters of Administration is payable. Effective May 16, 2011 Stamp Duty is now applied as follows: Estates whose net value is $10Million or less: $5,000.00 Estates whose net value is: · above $10M and below $20M - $10,000.00 · above $20M and below $30M - $15,000.00 · above $30M and below $40M - $20,000.00 · above $40M - $25,000.00

Disclaimer: These responses are intended to provide general information. They are not to be relied on in place of legal advice. If you would like to know more about the subject covered or require legal advice, please contact an Attorney at DunnCox.