So you’ve bought a property with someone and now the relationship has ended. What to do with regards to the property?
When people get married and specific marital property rights come into existence, property will be divided upon divorce and according to the chosen property regime entered into. If there were no marital relationship then one is dealing with common property and the division of communal assets.
Relief is found in an old Roman-Dutch law remedy called theActio communi dividundo. This action allows for the division of a communal asset under the following circumstances1:
- No co-owner is normally obliged to remain co-owner against his will.
- This action is available to those who own specific tangible things in co-ownership irrespective of whether the coowners are partners or not, to claim division of the joint property.
- Hence this action may be brought by a co-owner for the division of joint property where the co-owners cannot agree to the method of division.
- It is for purposes of this action immaterial whether the co-owners possess the joint property jointly or neither of them possess it or only one of them is in possession thereof.
- This action may also be used to claim as ancillary relief payment relating to profits enjoyed or expenses incurred in connection with the joint property.
- A court has a wide equitable discretion in making a division of joint property.
The action can be brought via an Application in the High Court, however should there be an existing dispute of fact which cannot be settled through affidavits2, then action procedure via summons and trial should be used.
Recent cases include where a Court granted an applicant an order, that a property be placed on the market and sold and if the respondent (often the disgruntled occupant and coowner of the property) does not agree with same the Sheriff of the Court may be directed to sign on their behalf