Mc Naught & Co
Common Property Ownership
The maxim “Communio Mater Rixarim Est” – is a latin phrase in law which means communal ownership is the mother of all disputes. Needless to say, many co-owners can agree with this.
The term Co-ownership refers to two or more people that jointly hold the entitlements of ownership in one or more properties at the same time, which include:
- The right to use the property
- The right to receive the “fruits” of the property
- The right to change the property
- The right to possess the property
- The owner’s right to prevent others from violating his or her rights
- The right to vindicate the property
Each co-owner has an undivided share in the common property, meaning, that the property cannot be divided until such time that the co-ownership exists. A co-owner may not dispose of or alienate the property without the consent of the other co-owners.
TERMINATION OF CO-OWNERSHIP:
As a rule of thumb, a co-owner may terminate or alienate his or her share of the property without the consent of the other co-owners. If a co-owner wishes to terminate his or her co-ownership in the property, he or she must prove:
- That co-ownership exists
- The other co-owner(s) refuse to terminate the co-ownership and they cannot agree on a method of termination.
In this instance, a court can grant an order to divide the co-ownership in a manner that it deems fit for the circumstances. For example, a court may award the property to one of the co-owners provided a sum of money is paid out to the other co-owners in return. A court may also order that the property be sold and the proceeds of such be distributed to the co-owners in their respective shares.
The main thing to remember is that Co-ownership should always be in writing and drafted by an Attorney to iron out ambiguity and/or any grey areas that could impact any of the above rights of the co-owners. Should there be any variations to the co-ownership, these too should be in writing, clear and unambiguous. Contact us for a professionally drafted property partnership / co-ownership agreement when next you buy property with someone else to ensure that you don’t have these headaches.
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