You bought property with who you thought was the love of your life. Like any love story, the relationship takes a sharp curve, and the relationship comes to an end.

You now want to terminate the co-ownership. What can you do?

Co-ownership indicates a situation where two or more persons own a thing (the immovable property in this instance), in undivided shares. In other words, each co-owner has the right to a share in the entire property. It is one ownership which vests in several persons. This means that a co-owner cannot alienate or encumber the property without the consent of the other co-owner.  A co-owner can only alienate their share in the property with the consent of the other co-owner (unless there is an agreement that prohibits this).

Co-ownership of immovable property becomes challenging when one or all the co-owners decide to step away and the parties then cannot agree on how the property should be subdivided. This is where the action commmuni dividendo comes in. This action affords a co-owner the means to have his undivided share in the property separated and to be compensated accordingly. The underlying rationale is that every co-owner of property may insist on a partition of the property at any time unless there is an agreement between the co-owners not to do so within a certain period even if there is an agreement to constitute perpetual joint ownership, the co-owner may demand partition at any time. If the co-owners cannot agree on the manner in which the property is to be divided between them, the court is empowered to make such an order that appears to be fair and equitable in the circumstances.

Where the property is not physically capable of such subdivision, such an order may, for example, entitle one of the co-owners to obtain whole of the property upon payment of a certain sum. If this is not appropriate or possible, the court may order the property to be sold and the proceeds to be then divided amongst the co-owners according to their shares. One well recognized way of doing so is by a sale by public auction and a division of the proceeds. The court may make any equitable adjustment if one of the co-owners has, for example benefitted financially from the property or incurred expenses in respect of the property.

The principles relating to the action communi dividundo were conveniently summarized by Joubert JA in Robson v Theron as follows:

1. No co-owner is normally obliged to remain a co-owner against his will.
2. This action is available to those who own specific tangible things (res corporals) in co-ownership, irrespective of whether the co-owners are partners or not, to claim division of the joint property.
3. 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.
4. It is for purposes of this action immaterial whether the co-owners possess the joint property jointly or neither of them possesses it or only one of them is in possession thereof.
5. This action may also be used to claim as ancillary relief payment of praestationes personales relating to profits enjoyed or expenses incurred in connection with the joint property.
6. A court has a wide equitable discretion in making a division of joint property. This wide equitable discretion is substantially identical to the similar discretion which a court has in respect of the mode of distribution of partnership assets amongst partners.

It is noteworthy to mention that where a claim for subdivision of a jointly owned property is pending, the co-owners may still alienate their shares as seen in Vorster and Others v Vorster and Others [2013] ZAEGHC. The court further held that:

“any right to claim under action communi dividundo does not entitle the respondents to acquire the appellants share at their (respondents’) price. The right of a co-owner to alienate his or her property freely without reference to co-owner is entrenched in our law.”

The only instance where a co-owner is precluded from insisting on partition of the property is where he has entered into an agreement with the other co-owners not to do so within a specified period.

In conclusion, the courts are always at the assistance of a co-owner who wishes to part with his undivided share in the co-owned property and nothing should bar such co-owner from alienating their share should they be in a position to do so.