How do I sell or divide jointly owned property if the other owner doesn’t agree?

Sometimes situations arise where joint owners, whether life partners, family members or business partners, disagree about how they should use land they own together. In these situations, a joint owner can apply for a forced sale or subdivision of the land, called Partition, without the consent of the other joint owner.

The starting point for any joint ownership is that the law favours one party being able to sell or transfer their ownership of land. The law doesn’t necessarily trap joint owners into staying joint owners, a bit like a no-fault divorce laws in Australia, provided the sale or proposed subdivision is “fair and just”.

A joint owner can apply to VCAT to sell or subdivide land, or jointly owned goods like machinery. The exception to this is if it involves a business partnership dispute, this will need to be heard in the Supreme Court.

Whether the sale or division of land is "just and fair" must take into account:

1. the use of the land, such as if it is a home, farm or business property. For example, it may not be just and fair to subdivide a farm that is used by one party as their only source of income.
2. whether the land can be divided and the practicality of dividing the land. This includes whether any proposed subdivision of the land would comply with the local planning scheme, and whether the division could by physically divided by a fence. It also considers contingent practical issues like re-sale value and access to services on the land in future.
3. any particular links, special value or attachment to the land that an owner has. Special value means the value of land to the owner over and above its market value. This could include whether the land is used for religious purposes or as a place of assembly.

If one joint owner wishes to subdivide the land, they will need evidence from

• a surveyor about the area of the land
• a valuer about the financial value of the proposed subdivision. Each joint owner is entitled to the monetary value of their share of the land. For example, if a joint owner proposed that the land be subdivided, and each owner get an equal amount of land, but the land they wanted was more valuable, that wouldn’t be acceptable.
• a planning expert to ensure the land can be divided up in accordance with local planning scheme.

Often in cases it is decided that the sale of land is more just and fair to all joint owners because there are too many issues with the proposed subdivision. If a forced sale is ordered by VCAT, it is normally by public auction with the proceeds of sale being divided between the owners in proportion to their ownership.

If you are on the other side of an application and want to stay as owner of the land, your best approach is to offer to buy the other parties share of the land, or bid at auction of the forced sale.

Partition disputes are often best avoided by reaching agreement with your joint owner. If they are inevitable and the relationship has broken down, OFRM Lawyers can help you achieve a fair and just outcome. Call Lachlan Edwards on 03 5445 1031 or Siobhan Liston on 5445 1067.