Joint Ownership in Immovable Property
The following legal aspects regulate joint ownership in immovable property and the partition thereof.
- The parties own the property in undivided shares, meaning that no owner is the sole owner of any particular portion of the property. They both own the property as a whole.
- The ratio of the parties shares is only relevant with regard to their liability for payment of expenses and sharing profits.
- Parties may regulate their rights and duties by agreement between them, whether in writing, implied or tacit terms. Failing agreement on a particular issue, the common law principles will apply.
- Each owner is entitled to make reasonable use of the property. One owner cannot appropriate the property or any portion thereof for himself, or prevent another joint owner from using the property. The owners are not obliged to compensate their joint owners for their reasonable use of the property.
- The joint owners must share the profits from the property and are liable for the maintenance of the property pro rata to their respective shares.
- The joint owners are liable for the cost of necessary improvements and authorised luxury improvements.
- A joint owner cannot be forced to remain a joint owner against his wishes.
- Every joint owner is at all times entitled to demand a termination of the joint ownership, unless a division had been otherwise agreed.
- A partition of joint ownership can take place voluntarily by agreement between the owners or by means of a Court Order.
- The joint ownership only terminates once the property or the undivided shares are transferred away to the new owners.
- If the owners cannot agree on the partition of the joint ownership, a Court can be approached for the necessary order. The Court has a wide discretion to effect an equitable partition.
- If it is impractical, the Court will have to divide the property physically among the joint owners. If not, the Court can award the property to one joint owner on the basis that he must compensate the others for their shares.
- Where these methods of partition appear to be impractical, the Court may order the property to be sold by public auction and the proceeds to be shared among the owners.
A prior written agreement between joint owners of immovable property is crucial if legal action to regulate the use, cost and partition thereof is to be avoided.