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What remedy is available in order for us to terminate the joint ownership in respect of a property.
01 July 2021  | Puleng Valentine Tladi
 

My ex-boyfriend and I are co-owners of immovable property known as ERF 123 Welkom, province Free State, however we cannot come into agreement regarding the termination of the joint ownership of ERF 123 Welkom, province Free State. What remedy is available in order for us to terminate the joint ownership in respect of the above-mentioned property.

 

You may approach court for relief by instituting an action known as the “ actio communio dividundo”.

 

Harms clearly states on page 228 of  Amblers precedents of pleadings, 9th edition that, in order to succeed you will have to allege or prove the following:

 

  1. The existence of the Joint Ownership

     

    • A title deed showing both your names ;

       

    • A Court Order declaring both you and the ex-boyfriend as co-owners of the property;

       

    • A will nominating you and the ex-boyfriend as co-owners of the property;

       

       

  2. A ground of termination of joint ownership

     

    You must prove that both parties cannot come into an agreement regarding the termination of the joint estate:

  • A wants to sell her half share of the property to B for half of the market value of the property, however B is not willing to buy A’s 50 % share in the property for the market value of the property but is willing to purchase A’s 50 % share in the property for half of the initial purchase price, despite improvements be done to the house, which resulted in the increase of the market value of the house.

     

  1. Facts which the court can take into account in determining a just and equitable manner in which the co-ownership is to be terminated

 

  • The parties may sell the property through an estate agent or pubic auction for the market value of the property, which amount shall be divided between the parties or the amount can be use to pay the balance of the bond owing and the net proceeds can be divided between the parties; or

     

  • Either one of the co-owner can acquire 50 % share of the other for compensation; or

     

  • Sub-division of property if it can be done legally or physically.

 

Claassen v Quenstedt and Others (1199/2011) [2014] ZAECPEHC 18 (25 March 2014) Judge Tshiki stated the following in his judgement:

 

[15] “In ordinary co-ownership, two or more persons own one or more objects simultaneously, not in physical portions but in abstract undivided shares. If A & B are co-owners of a farm, none is entitled to a physical part of the farm but each to an undivided share in the whole farm. Section 34 of the Deeds Registries Act 47 of 1937 expressly provides that land held in co-ownership must be registered in the names of the co-owners. In view of the fact that no co-owner is obliged to remain a co-owner against his or her will, in the absence of an agreement to the contrary, any 8 co-owner may demand partition of the common property at any time. If partition is not possible or would bring about some complications or prejudice to any of the parties the Court can grant an order for the sale of the property and divide the money equally amongst the owners. (Wille’s Principles of South Africa Law 9th ed by Francois du Bois et al p561-562)”.

And

[16] “This form of co-ownership is governed by the actio communi dividundo.  In Robson v Theron 1978(1) SA 841 (A) at 854G-H Joubert JA explains the actio communi dividundo as follows: The actio communi dividundo is an action which originated in Roman law and was subsequently adopted in Roman Dutch law.  Its chief characteristics appear from Voet, 10.3.1 quoted in Gane’s translation as follows: “This action for the division of common property is a mixed, a two-sided and a bona fide action. By it those who hold property in common, generally by particular title, claim to have it divided and personal items of payment made good.  It is available, that is to say, to those who hold common property in undivided shares.  This is so whether the property is common between them in a partnership or without a partnership D.10.3.2; whether they possess it, or neither of them or only one of them is in possession …”

 

 

 
 
 
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