CO-OWNERSHIP OF LAND – “THE MOTHER OF DISPUTES”

Can two or more persons co-own land? The answer to this is YES. Two or more persons can co-own land in undivided shares. An undivided share means an undefined portion of the land. A share in land does not mean an actual piece of the co-owned land but rather a right and entitlement to the land as a whole. A co-owner thus does not own a defined portion of the land but rather owns a share in the land as a whole. The shares owned by the co-owners do not have to be equal in number. If the land is owned by X, Y and Z it is possible for X to own 50%, Y to own 30% and Z to own 20%.

The entitlements allowed to each co-owner by virtue of their shares in the land include the right to use the property, enjoy the natural and commercial fruits of the property, change the property, possess the property, prevent others from violating his/her rights and recover the property from someone with no legal right to possess it.

A co-owner cannot build on the land without the consent of the other co-owners. If a co-owner builds / develops on the co-owned land the building / development will automatically also be co-owned by all the other co-owners.

The co-owners can agree to partition the land according to the value of the land and the respective co-owner’s share in the land. Each co-owner may then use his partitioned portion of the land as he deems fit however having due regard for the rights of the other co-owners.

All co-owners must contribute proportionately according to their respective shares in the property in order to maintain and preserve the property. These expenses include taxes and the expenses necessarily required to maintain the property in good order and repair.

In the event of the property deriving a profit; all co-owners will proportionately share in the profits and likewise if the property sustains a loss, the co-owners will proportionately be liable for the losses, except in the event of one of the co-owners acting negligently. In such event, the other co-owners may recover the damages that the negligent act caused them.

A co-owner can freely dispose of his/her shares in the undivided property by either, selling, alienating his/her share or even bequeathing his/her share to an heir without the consent of the other co-owners. Co-owners shares can also be attached by the sheriff and sold in execution.

It is advisable that co-owners of land enter into a written agreement to aid in regulating their relationship regarding the co-owned land. The agreement will stipulate the use of the land (although this is normally determined by the reason for which the property was purchased by the co-owners) and the manner in which administrative decisions are to be made.

It is often the case that co-owners disagree with regard to the management of the land. These difficulties are captured by the expression communion est mater rixarum; meaning “co-ownership is the mother of disputes”. It is important to include in the co-owners agreement a remedy clause to assist the co-owners in remedying disputes.

In the event of one or more of the co-owners defying the other co-owners by proceeding to act without the consent their co-owners, the aggrieved co-owners can approach the Court for an order interdicting the defiant co-owner/s from proceeding to act. In a decided case it was held that, in the event of an interdict being sought; “the Court would consider whether the conduct complained of constitutes an unreasonable use, inconsistent with the use to which the property was destined and to the detriment of the rights of the other co-owner...”

Agricultural land is a special case. In terms of the Subdivision of Agricultural Land Act No 70 of 1970, from the inception of such Act in 1970, co-ownership of agricultural land without the permission of the National Minister of Agriculture is prohibited.

Contributor: JENNA FREEGUARD (Associate) (Pietermaritzburg Office) (General Litigation & Matrimonial Departments)

E-mail: jennaf@tmj.co.za

Tel: 033 – 341 9100