Joint property ownership disputes
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Co-owned Land/Jointly Owned Land
Unfortunately, joint property ownership disputes between co-owners of real estate are a common occurrence in Melbourne and throughout Victoria. They can arise for many reasons - a change in personal circumstances of the joint property owners, family falling out, one part-owner moving interstate or overseas and no longer residing at the property or a co-owner going into care. Sometimes one co-owner wants to sell and the other does not. If you find yourself in a shared property ownership dispute it is important that you understand your rights and options. Galbally & O'Bryan may be able to help you.
Joint property ownership disputes - what are my rights as a co-owner?
Disputes between co-owners of land are heard by the Victorian Civil & Administrative Tribunal (VCAT) under Part IV of the Property Law Act 1958 (PLA). VCAT has very wide powers in joint property ownership disputes. It can make orders for things like a sale of the property, orders for how the property is to be sold by private sale, auction or otherwise, choice of agent, conveyancer. VCAT can also make orders for compensation/reimbursement between the co-owners for what monies they've put into the property.
Can I force a sale of jointly owned property?
The starting point is yes - VCAT will ordinarily order a sale of the co-owned property if one co-owner wants a sale. VCAT generally takes the view that co-owners should not be 'locked in' together. The fact a forced sale might be harsh or unfair on the other co-owners will not of itself stop an order from being made. There is no requirement to show wrongdoing by the co-owners. VCAT has used the analogy of 'no fault divorce' in Moll v Noblett [2009] 353 at [40].
What if I don't want to sell the jointly owned property, can I stop the other co-owner from getting a sale order?
There are some situations in which one co-owner can stop the other from getting a sale order at VCAT. Generally speaking, VCAT will only refuse to make an order if inconsistent with a prior agreement or arrangement or other legal right. For example, if the co-owners agreed that they would not apply for a sale order or if one of the co-owners represented to the other that he/she could live in the property for life. See Koroneos v Koroneos [2016] VCAT 461.
What if I put more money into the jointly owned property than the other co-owners? Can I get my money back?
Yes. Under Section 233 of the PLA, co-owners have the right to seek an accounting/compensation from the other co-owners on a sale.
It is often the case that one co-owner has paid more than their share of purchase monies, deposits, mortgage payments, renovations, maintenance, insurance and other outgoings. Sometimes a co-owner is put on title to have an extra income for the mortgage finance application and otherwise puts no money in. When relations sour, often co-owners cannot agree on how the proceeds of sale should be distributed between them after sale.
VCAT has wide powers to make orders for accounting and compensation. Such orders are normally made as part of an order for the sale of the property. VCAT sometimes orders an adjustment in the percentage holdings of the co-owners to reflect the unequal contributions of the co-owners and sometimes it orders a fixed sum to be paid.
In some circumstances, VCAT will order an occupying co-owner to pay an occupation rent to a non-occupying co-owner as part of calculating compensation.
This area of law is complex. There are many cases where VCAT has considered what is and is not claimable under Section 233 of the PLA. Particular care needs to be taken in preparation of your accounting/compensation claim to maximise what can be recovered from the other co-owners.
Are there any joint property ownership disputes that cannot be taken to VCAT?
Yes, VCAT cannot hear disputes between parties to a marriage or de facto relationship or claims to which the Partnership Act 1958 (Vic) applies.
What is the process for making a claim at VCAT?
A claim is made by application supported by points of claim. This is a legal document setting out the facts of the case, what orders you want VCAT to make and any claim for compensation/accounting. VCAT favours early mediation of joint property ownership disputes. After an application is made, VCAT will usually make orders for each party to set out and quantify any compensation/accounting claim they have, exchange any documents and (sometimes) a valuation. The case will then be referred to compulsory mediation.
What happens at the VCAT compulsory mediation of the joint property ownership dispute?
The mediation is a settlement conference. It usually takes place at VCAT in Melbourne. The purpose of the mediation is to give the parties the opportunity to reach a negotiated settlement. The parties and their lawyers attend. VCAT provides a mediator. The mediator's role is to facilitate discussion not make decisions about the case. The mediation is confidential and without prejudice. A whole day is normally set aside. If a settlement can be reached, any agreement is normally drawn up and signed on the day of the mediation. In our experience, the vast majority of co-ownership disputes resolve by agreement at mediation.
How we can help
We are experienced property dispute lawyers with a proven track record of working through joint property ownership disputes with a broad range of clients to achieve positive outcomes.
We can help you by:
- Providing you with advice about your rights and obligations as a co-owner;
- Assisting you to negotiate a resolution regarding an existing joint property ownership dispute.
- Representing you at VCAT in any proceeding relating to a joint property ownership dispute.
If you are involved in a joint property ownership dispute and are unsure how best to resolve it please get in touch with property dispute lawyers Andrew O'Bryan or Carl Wilson on (03) 9200 2533 or send us an email at aobryan@galballyobryan.com.au or cwilson@galballyobryan.com.au
Andrew O'Bryan
Galbally & O'Bryan
Lawyers
259 William Street
MELBOURNE VIC 3000
T (03) 9200 2533 I M 0400 469 704
E aobryan@galballyobryan.com.au
Carl Wilson
Galbally & O'Bryan
Lawyers
259 William Street
MELBOURNE VIC 3000
T (03) 9200 2533
E cwilson@galballyobryan.com.au
Melbourne Office
259 William Street
MELBOURNE VIC 3000
T (03) 9200 2533
E cwilson@galballyobryan.com.au
Dandenong Office
Shop 9/147-151 Foster Street
DANDENONG VIC 3175
T (03) 9769 2510
E nglavic@galballyobryan.com.au
Pakenham Office
Shop 1, 15 John Street
PAKENHAM VIC 3810
T (03) 5941 7990
E pakenham@galballyobryan.com.au