Legal Eagle : Partition or sale of property with co-owners

May 01, 2017
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Three siblings, namely Nailah, Naeem and Brittany, are co-owners of three parcels of land. They jointly owned lands in St Mary and Portland as joint tenants and a commercial property in the Corporate Area as tenants-in-common.

They have been co-owners for over 10 years but in recent years Nailah is having frequent arguments with Naeem about the five-acre parcel of land in Nonsuch, Portland, and Brittany is unhappy with the Nailah's rental of the five-bedroom dwelling house in Retreat, St Mary.

They all disagree as to what to do with the commercial property in the Corporate Area. They now want a solution.

The solution in law might be found in an old piece of legislation called the Partition Act, 1873 [the 'Act'].

Generally, the Act provides that all persons holding properties as joint tenants or tenants-in-common may commence proceedings in the Supreme Court or the Parish Court for a partition of the properties or sale of the properties and distribution of the proceeds.

Partition is a term used in law to describe an act by a court or otherwise to divide properties owned by several persons into separate portions, which represents their proportionate interest.

 

TYPES OF PARTITIONS

 

There are three kinds of partition, namely: kind, which is a division of property among co-owners; allotment, where the court orders full allotment to one or more persons and orders them to pay the other co-owners; and sale, which is a forced sale by order of the court.

In a claim in court for partition, any of the parties to which the claim relates may ask the court to direct a sale of the property and distribution of the proceeds.

The court may make the order as requested, unless the other parties interested in the property undertake to purchase the share of the party requesting the sale.

At the hearing of the partition claim, the court may order a sale of the premises and a distribution of the proceeds, if that is more beneficial for the interested parties than a division of the property between or among them.

The court is also empowered to make consequential orders to facilitate partition or a sale.

If any of the premises owned by the three siblings is incapable of division without prejudice to the other two, the court will facilitate a set-off to any of the siblings upon payment by that sibling to the others.

A sale of land is also likely to be ordered by the court where the land cannot be divided without prejudice to the parties or due to infancy, insanity or a party's absence from the jurisdiction.

However, the court has power under the Act to dispense with service of notice of judgment to any person or class of persons, and to have the proceeds of sale paid to a trustee or paid into court.

In light of the above, any of the siblings, that is to say, Nailah, Naeem or Brittany may commence proceedings in a Parish Court or the Supreme Court, under the Partition Act, to ask the court to make orders for the partition of any of the three properties or the sale and distribution of the proceeds from all three properties.

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