The termination of joint ownership

The action for division of property is well established in South African law. Every co-owner of property may insist on a partition of the property at any time. This may be done even in the case where there is a perpetual joint ownership agreement.

Verbal vs. written contracts for conveyancing

An interesting decision was handed down by the Johannesburg High Court on 1 July 2022. In this case, an applicant, being one of the parties to a universal partnership, had sought to rely on the action for division of joint ownership (actio communi dividundo) to terminate the joint ownership of an immovable property (‘the property’). The applicant also sought to appoint a receiver and liquidator with specific functions to effect and arrange the termination.

The parties in this case were in a romantic relationship. They agreed to live together and to purchase a property, which they subsequently did, and the property was registered in their joint names in 2018. They were jointly registered owners in undivided shares of the property. The relationship then broke down irretrievably in 2020. The applicant residing in the property wished to terminate the joint ownership, but the respondent refused to do so. The parties were unable to amicably agree to a way of terminating the joint ownership in the property – and as a result, the applicant made application to court in order to do so.

The action for division of property is well established in South African law. Every co-owner of property may insist on a partition of the property at any time. This may be done even in the case where there is a perpetual joint ownership agreement. If owners cannot agree on the way in which the property is to be divided, then the court is empowered to make an order that appears fair and equitable. A court may, for instance, order the property to be sold and the proceeds to be divided among the co-owners according to their shares in the property. 

The principles relating to the actio communi dividundo were summarised by the Supreme Court of Appeal in the matter of Robson 5 as follows:

(a) No co-owner is normally obliged to remain a co-owner against his will.

(b) This action is available to those who own specific tangible things (res corporales) in co-ownership, irrespective of whether the co-owners are partners or not, to claim division of the joint property.

(c) Hence this action may be brought by a co-owner for the division of joint property where the co-owners cannot agree to the method of division.

(d) It is for purposes of this action immaterial whether the co-owners possess the joint property jointly or neither of them possesses it or only one of them is in possession thereof.

(e) This action may also be used to claim as ancillary relief payment of praestationes personales relating to profits enjoyed or expenses incurred in connection with the joint property.

(f) A court has a wide equitable discretion in making a division of joint property. This wide equitable discretion is substantially identical to the similar discretion which a court has in respect of the mode of distribution of partnership assets among partners.

The crisp issue for determination in this case was whether a universal partnership existed and whether it had been dissolved. It also needed to be determined whether the applicant’s election to invoke the actio communi dividundo by way of motion was the correct procedure. 

The court ordered in the affirmative and stated specifically that the parties’ joint ownership of the property be terminated, the property be sold, and all necessary documentation to give effect to transfer be signed.

Recommended for you

Your bond application: A key ingredient to the property transfer
Contractual Matters

Suspensive conditions[post_view before=""]

Contracts for the sale of immovable property will very often contain suspensive conditions. One of the most common types of suspensive conditions is bond approval. 

Read More
Buying tenanted properties - don’t get caught out
Contractual Matters

Electronic signatures and the virtual commissioning of affidavits[post_view before=""]

In our June newsletter, we looked at an interesting court decision handed down in 2020 by the Eastern Cape Division of the High Court of South Africa, related to the application of electronic signatures to offers to purchase land. Last year, the electronic signing of documents once again came under the spotlight in the case of Firstrand Bank Limited v Jacques Louis Briedenhann. Interestingly, this decision was also handed down by the Eastern Cape Division of the High Court, which appears to be making groundbreaking decisions in this regard.

Read More
Property Blog Articles | Advice | Contractual Matters | Market News
Contractual Matters

The property professional’s checklist for dealmaking[post_view before=""]

The property professional plays a critical role in the process of buying and selling real estate. When ‘making the deal’, they must engage with the seller to collect information and documentation that will be needed throughout the process. At the time of taking the mandate, it is crucial that they clarify certain facts and obtain specific information and documentation in order to pre-empt any issues that may arise, thus saving time.

Read More
Buying tenanted properties - don’t get caught out
Contractual Matters

Electronic signatures and OTPs[post_view before=""]

As we live in an online world, and because of the recent pandemic, electronic signatures are becoming more commonplace – and an increasing number of buyers and sellers are asking to sign their OTPs electronically.

Read More
Minors and immovable property
Contractual Matters

When ownership of immovable property is vested in a company[post_view before=""]

There are instances where ownership of land is vested in a company. Typically, a company is registered, usually with one or two directors, and such company then takes transfer of the immovable property. The land is then held in the name of the legal entity (being the company), with the individuals or directors who intend to stay there holding shares in the company.

Read More

Need more Snymans content?

Sign up for our monthly newsletter.

The termination of joint ownership

The action for division of property is well established in South African law. Every co-owner of property may insist on a partition of the property at any time. This may be done even in the case where there is a perpetual joint ownership agreement.

Verbal vs. written contracts for conveyancing

An interesting decision was handed down by the Johannesburg High Court on 1 July 2022. In this case, an applicant, being one of the parties to a universal partnership, had sought to rely on the action for division of joint ownership (actio communi dividundo) to terminate the joint ownership of an immovable property (‘the property’). The applicant also sought to appoint a receiver and liquidator with specific functions to effect and arrange the termination.

The parties in this case were in a romantic relationship. They agreed to live together and to purchase a property, which they subsequently did, and the property was registered in their joint names in 2018. They were jointly registered owners in undivided shares of the property. The relationship then broke down irretrievably in 2020. The applicant residing in the property wished to terminate the joint ownership, but the respondent refused to do so. The parties were unable to amicably agree to a way of terminating the joint ownership in the property – and as a result, the applicant made application to court in order to do so.

The action for division of property is well established in South African law. Every co-owner of property may insist on a partition of the property at any time. This may be done even in the case where there is a perpetual joint ownership agreement. If owners cannot agree on the way in which the property is to be divided, then the court is empowered to make an order that appears fair and equitable. A court may, for instance, order the property to be sold and the proceeds to be divided among the co-owners according to their shares in the property. 

The principles relating to the actio communi dividundo were summarised by the Supreme Court of Appeal in the matter of Robson 5 as follows:

(a) No co-owner is normally obliged to remain a co-owner against his will.

(b) This action is available to those who own specific tangible things (res corporales) in co-ownership, irrespective of whether the co-owners are partners or not, to claim division of the joint property.

(c) Hence this action may be brought by a co-owner for the division of joint property where the co-owners cannot agree to the method of division.

(d) It is for purposes of this action immaterial whether the co-owners possess the joint property jointly or neither of them possesses it or only one of them is in possession thereof.

(e) This action may also be used to claim as ancillary relief payment of praestationes personales relating to profits enjoyed or expenses incurred in connection with the joint property.

(f) A court has a wide equitable discretion in making a division of joint property. This wide equitable discretion is substantially identical to the similar discretion which a court has in respect of the mode of distribution of partnership assets among partners.

The crisp issue for determination in this case was whether a universal partnership existed and whether it had been dissolved. It also needed to be determined whether the applicant’s election to invoke the actio communi dividundo by way of motion was the correct procedure. 

The court ordered in the affirmative and stated specifically that the parties’ joint ownership of the property be terminated, the property be sold, and all necessary documentation to give effect to transfer be signed.