Can I Be Forced To remain A Co Owner Of Property

This scenario comes up frequently where people decide to do the commercial-viable thing of purchasing property jointly, whether it is in a marriage, commercial partnership or romantic relationship. The need to ask this question arises when the relationship sours, a stalemate is reached, or there are unreasonable delays being used to dissolve joint ownership.

There is authority in law that states a person cannot be forced to remain a co-owner of property. If a situation arises where this Party is being forced to do so, then this affected Party must approach the Court in terms of an what is legally known as “actio communi dividundo claim” for relief which is akin to having one’s undivided share in immovable property separated and compensation sought simultaneously therewith. The nature of the relief a court may grant includes sub-division (if feasible), disposal of the property and sharing of proceeds, as well as transfer by one co-owner to the other.

It can also happen that a partnership amounts to more than just one asset. In such a case, there are usually reciprocal rights for both Parties where amounts were paid by one Party in favour of the other and where compensation is usually sought in an amongst the pool of assets and liabilities (the so-called “estate”).

This can emanate from a commercial or personal relationship. For example, in respect of the former, two persons decide may decide to purchase immovable properties together as part of a pseudo joint venture and share the profits in accordance with their purchasing power. Another example may be a family-run business. There are many examples of where this may occur.

Where there is an “estate”, the Court has “a wide discretion to determine whether to appoint a liquidator, or to order a division of the partnership property, or to order one partner to take over that property at a valuation with payment of the appropriate share to the other or others.

”1The nature of this proceeding is dependent on the facts of the case. If you as the affected Party foresee a material dispute in fact (i.e. where evidence would need to be tested), then the correct approach would be it go by way of an action (i.e. issue summons in order to proceed to trial). If the dispute is capable of being resolved on affidavit, then one may approach the matter by way of application. In recent years, litigants have had the election being upheld by the Court. However, in one matter, the Court was of the view that actio communi dividundo can only be done by way of action.2 This outcome has not received approval however from other judges.

3 Examples of where the Courts have allowed matters of this nature to be heard on application include

(1) where a property was inherited by two siblings from their Late mother where the siblings could not agree on how to dispose of the property,4
(2) former spouses could not agree on how to realise an accrual claim.5
Each situation will be considered differently and the correct procedure to follow is situation-specific. The reason this is relevant is because it is desirable to go by way of application – the law allows for these matters to by and large be resolved quicker than actions. The bottom line for you to consider is

1 Morar NO v Akoo and Another (498/10) [2011] ZASCA 130; 2011 (6) SA 311 (SCA); [2011] 4 All SA 617 (SCA) (15 September 2011)
2Lesenya v Ngwenya (61306/2014) [2018] ZAGPPHC 502 (6 July 2018)
3 Richard v Richards (91388/2015) [2019] ZAGPPHC (20 June 2019) unreported judgment
4 Dougans v Dougans (27975/2018) [2019] ZAGPJHC 25 (7 February 2019)
5 Fn 3

whether or not a bigger dispute is envisaged that can only be resolved by testing evidence (i.e. through oral testimony, scrutinization of physical evidence, and if necessary consideration of expert opinion).

If you have such a dispute, please contact us immediately so that may help you determine the correct procedure and then assist in resolving the matter for you.

Aleisha Oliver