Purchasing property in today’s market can be difficult. The usual ‘tough decisions’ concerning where, when and how to purchase a property are sometimes riddled with concealed potholes. For this reason, and many others, it is imperative that any issues pertaining to the purchase of a property are ironed out well before you sign on the ‘dotted line’ and settlement comes about to ensure that disputes do not arise down the track.
I recently appeared for a gentleman who had a dispute with his daughter concerning a property they purchased as co-owners. Co-ownership, for those unfamiliar with the phrase, is when a parcel of land is purchased and owned by two or more parties as joint tenants or as tenants in common. The gentleman decided that he wanted out of the co-ownership arrangement but his daughter refused to facilitate the sale of the property because ‘their issue was trivial and had it become a matter of pride’. Whatever that meant.
In this case, the gentleman filed an application in the Supreme Court of New South Wales asking the Court to appoint trustees to force the sale, or partition, of the property. He relied on section 66G of the Conveyancing Act 1919 (NSW) which provides that:
‘…on the application of any one or more of the co-owners, appoint trustees… [for the property] to be held by them on the statutory trust for sale or on the statutory trust for partition’.
Except for very special cases, a co-owner is entitled to an order under this section as of right (Re Fettell (1952) 52 SR (NSW) 221). There are however circumstances where such an order may be refused including an application in breach of contract, apparent inconsistency with a proprietary or fiduciary obligation and estoppel. One only has to look at the recent decision in Harris v Harris  NSWSC 1766 to understand the type of hurdles a resisting party faces in defending these types of applications.
If you would like to discuss anything to do with applying to the Court for the sale or partitioning of a property, please do not hesitate to contact me by:
Phone: (02) 9232 4466
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