In the recent case of Jackson v Petersen & Others, two parties in a romantic relationship jointly acquired immovable property which was registered in their names as co-owners. The romantic relationship ended but they continued to own the property in equal shares, which was not desirable or viable.
After settlement negotiations between the parties and the respondent's failure to comply with the terms of the settlement agreement, the applicant instituted legal proceedings for the termination of co-ownership and division of the property in terms of the South African common law remedy called the Actio Communi Dividundo.
Actio Communi Dividundo is invoked by a co-owner in order to terminate co-ownership and divide immovable property held jointly. The underlying principle of the action is that a co-owner cannot be forced to remain a co-owner of property forever.
The court referred to the case of Robson v Theron (1978) which held that:
- (i) no co-owner is normally obliged to remain a co-owner against his will,
- (ii) actio communi dividundo is available to those who own property in co-ownership and may be brought irrespective of whether the co-owners are partners or not,
- (iii) the action can be invoked where there is a disagreement as to the method of division,
- (iv) it is immaterial which co-owner is in possession of the property and
- (v) the court has a wide equitable discretion in making a division of jointly owned immovable property.
The court in the Jackson v Petersen & Others case considered whether there was an underlying relationship connecting the co-ownership and what mechanism would be just and equitable for the division of the immovable property.
The court found that there was no longer an underlying relationship between the parties as the romantic relationship ended and that it was fair, just and equitable that the applicant be the party to retain ownership of the property and to purchase the other's half-share upon the basis that the applicant serviced the bond and was the mother and guardian of the minor child born of the relationship between the parties.
Notwithstanding the precedent set by this recent case, it is our considered view that from the date that immovable property is registered in the name of co-owners, a co-ownership agreement should be drawn up and signed by the co-owners, This will regulate how buy out values are calculated, who pays the running costs of the property (pre and post) the break up and a mechanism for selling the asset.
