CO-OWNERSHIP & THE ACTIO COMMUNI DIVIDENDO

So you & your BFF decide that it would be a great investment to buy that quaint townhouse in Mouille Point as an investment. All goes well for a few years & then comes the big blow out between you. Now BFF wants out & demands payment of her half share. What to do?

This scenario is an all too familiar one and is well captured in the expression “communio est mater rixarum”, translated as “co-ownership is the mother of disputes”.

Co-ownership of immovable property becomes challenging when one or all of the co-owners decide to step away & the parties then cannot agree on how the property should be subdivided.

This is where the actio communi dividendo comes in. This action affords a co-owner the means to have his undivided share in the property separated & to be compensated accordingly. A court is competent to make any of the following orders in these circumstances:

1. a) Subdivision of the property, if this is practical;
2. b) Sale of the property & division of the proceeds between co-owners;
3. c) Transfer of the property to one of the co-owners against payment to the other co-owners.

The above is not exhaustive & the courts have a discretion to make any order that is fair and equitable in the circumstances, for example where one of the co-owners has enjoyed occupation of the property, or carried expenses in respect of the property (e.g. maintenance, rates & taxes), the court may make any adjustment between the co-owners as to the payment received for their share in the property.

It is noteworthy to mention that where a claim for subdivision of a jointly owned property is pending, the co-owners may still alienate their shares. In Vorster and Others v Vorster and Others (CA366/2011) [2013] ZAECGHC, it was held that no legal basis can be found to support that “where one or more co-owners have instituted claims for partition of a jointly owned property the co-owners may not alienate their shares until finalization of the pending claims. … such barring of an owner from alienating his or her share of the property would make no sense, for the (proposed) alienation would effectively be giving effect to the pending claim.”

The court held further that:

“any right to claim under actio communi dividundo does not entitle the respondents to acquire the appellants share at their (the respondents’) price. The right of a co-owner to alienate his or her property freely and without reference to co-owners is entrenched in our law.”

The only instance where a co-owner is precluded from insisting on partition of the property is where he has entered into an agreement with the other co-owners not to do so within a specified period.

The underlying principles of the actio communi dividendo is fully discussed in Matadin v Parma and Others (4638/2009) [2010] ZAKZPHC in which it was ordered that the property in question be sold by public auction, with a reserve price & the net proceeds be divided and paid to the co-owners.

So, eventhough the courts will come to the aid of a co-owner who wishes to part ways with his undivided share in the co-owned property, nothing stops a co-owner from alienating his share in the property, should he be in a position to do so.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. (E & OE)