Co-owners may enter a co-ownership or partnership agreement. Traditionally, it was held that co-ownership agreements could displace the statutory power to order partition and sale. It appears that co-owners may be precluded by contract or estoppel from exercising the right to apply for partition, sale etc.
However, there are different opinions as to the extent to which joint owners and co-owners may permanently agree not to sell their interest in the property. It has been suggested that co-owners cannot contract out of a Partition Act for all purposes.
Co-ownership agreements may provide for rights of pre-emption on the part of co-owners, in the event of a prospective sale. The courts may interpret apply such agreements narrowly. It appears, on balance, that the Irish courts are likely to uphold these clauses. Otherwise, a sale or partition action would circumvent the contract.
Co-owners may agree to divide the property between them by way of partition. Partition involves a physical division/apportionment of the property, between the co-owners so that each is the full owner of a part only. Joint tenants and tenants in common may partition by agreement.
The principle applies to any estate whether a freehold estate, a long or a short lease. A lease may require the consent of the landlord, which may preclude partition.
A partition may extend to easements and so-called incorporeal hereditaments. Dividing the dominant tenement will generally divide the benefit of easements, provided that they are attached to the whole. Certain types of easements and incorporeal hereditaments cannot be divided. Certain profits, fishing and riparian rights may not be divided, when held in common. Parties may circumvent this principle, by agreeing to divide the shares or the periods of occupation between them.
Upon a partition of land, owners may wish to reserve mutual easements over access ways and services, so that each piece of land is sustainable by itself. A third-party may be appointed to undertake a fair partition. An unbiased method of the division is thought to be where the person who seeks the subdivision, chooses his part last.
Agreement to Sell
Co-owners may realise the value of their land by sale by mutual agreement. Where there is disagreement or another contentious matter, a mechanism may be agreed for realising the maximum value and distribution of the sale price. A single solicitor might be appointed with joint carriage of sale.
In the event of not all co-owners agree to a sale or partition, any owner may apply to the court for an order for partition or sale. The Partition Acts dealt with the forced partition or sale of property held by co-owners.
The Land and Conveyancing Law Reform Act provides that a conveyance or a contract to divide the land by a single owner is void, at law and equity. It is necessary to apply to the court to dispense with consent. After the legislation, the registration of a judgment mortgage against a joint owner does not sever the joint tenancy.
A judgment mortgage is extinguished on the death of the judgment debtor. However, the holder of the judgment mortgage may apply to the court for partition and sale before this.
Dealing with Interests
Joint tenants can transfer their interests to each other. In strict terms, the interest is released. The tenancy is severed between the parties to the release. If three parties are joint tenants and one releases an interest to another, then the joint tenant to whom the release is made, holds a one-third share as a tenant in common with the third party and each of them hold the other two thirds as joint tenants as between themselves.
If one of three joint tenants conveys his interest to another, this severs the interest between the recipient and the third party. Under the 2009 Act, the other co-owner’s consent is necessary both to the release and the conveyance. After the Act conveyance, or contract for a conveyance, of land held in a joint tenancy, or acquisition of another interest in such land,
by a joint tenant without the consent of the others is void both at law and in equity unless such consent is dispensed with by the court. Consent requires the prior consent in writing of the other joint tenant or, where there are more than one other, all the other joint tenants.
Court Application re Disputes
The Land and Conveyancing Law Reform Act allows any co-owner to apply to the court for an order. The orders can include
- physical division of the land
- order for sale and distribution of proceeds
- enquiry into the respective entitlements
- ordering adjustments in terms of payments made by owners
- dispensing with the requirement of consent
- such other orders as might be just and equitable.
Orders can be made subject to conditions. More than one order may be made. An adjustment can include
- payment of an occupation rent by an owner who has enjoyed or continues to enjoy the occupation of the property to the exclusion of another co-owner
- redistribution of rents and profits received disproportionately
- compensation for disproportionate expenditure (usually ) on repairs and improvements
- any other adjustment necessary to achieve fairness
Where property disputes arise in the context of marriage or relationship breakdown, further very significant powers are available to the court.
the courts have powers under judicial separation divorce civil partnership and cohabitation legislation to make orders in relation to the family or shared home. Unlike the position under section 31 of the 2009 Act, this family legislation allows for the transfer of an interest inconsistent with the underlying property rights in the context of divorce judicial separation et cetera. It may rearrange property rights in the context of the divorce or separation.
Family civil partnership and cohabitation legislation provides for the possibility of making orders for sale on partition in the context of matrimonial applications. They may also be made in the context of summary applications under the shorter procedure in the Married Woman’s Status Act which allows for summary application for determining issues in respect of ownership and property as between spouses. Claims of beneficial interest based on contributions or retention of the mortgage may be made in the context of these proceedings.
No Right to buy
A court could make an order whereby one party is compelled to sell to the other. However, the primary type of order is one for sale to a third party at arms’ length with the distribution of proceeds. A sale will almost always be a market sale to a third party.
The fact of one party wishing to buy is not generally a sufficiently good reason to refuse a third party sale. A partition is more likely to be ordered. However, many properties including houses are unsuitable for partition.
Disagreements regarding the market and prospective future increase in price are usually insufficient to refuse the standard third party sale. It may be a relevant consideration.
The older legislation provided for the possibility that where one party had sought an order for sale, the court might exercise discretion where the other party against whom the sale was sought undertook to purchase the claimant’s share in a sale under the supervision of the court with a court-ordered valuation. That legislation did not appear to give an equivalent right to the person initiating the proceedings to buy out the other. This provision is not in the modern legislation.
References and Sources
Wylie on Irish Land Law Wylie 6th Edition 2020
Land Law In Ireland -Lyall 4th Edition 2018
Principles Of Irish Property Law de Londras 2nd Edition 2011
Equity and the Law of Trusts in Ireland- Keane 3rd Edition
Land Law Kenna & Murphy 2019
Land Law Pearce & Mee 3rd Edition 2011
Other Irish Sources
The Land and Conveyancing Law Reform Act 2009: Annotations and Commentary -Wylie 2nd Edition 2017
Property Legislation 2009 2011 Cannon, Clancy, Kenna 2012
Irish Land Law – A Casebook: Adanan Maddox 2020
A Casebook on Equity and Trusts in Ireland – Wylie
Land Law Nutshell Cannon 2020
Land law C. Bevan 2nd ed.2020
Land Law: Text, Cases and Materials B McFarlane, N Hopkins and S Nield, (4th ed. OUP 2018)
Property Law R Smith(10th ed., Pearson, 2020)
Cheshire and Burn’s Modern Law of Real Property by Burn, E. H. 2011
Modern Land Law Dixon 2018
Elements of Land Law Gray, 2009
Property law: cases and materials Smith 2015
Land law Cooke 2015
The Limitation of Actions, 2nd ed Brady and Kerr 1994
Limitation of Actions Canny 2016
Co-Ownership of Land: Partition Actions and Remedies – Conway
Public Sector Materials; Statutes and Cases in italics are reproduced as public sector material. See the Legal Materials link in the footer.