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Co-ownership disputes

Co-ownership disputes

By Philip Barton

Dispute Resolution Real Property 

The right of a co-owner to sale or partition is statutory, found in the Property Law Act 19581 Part IV. In 2005 the substantive law was significantly reformed. It is now opportune to consider the first decade of operation of the new legislation. A co-owner, defined as someone with an interest in land or goods with one or more other persons as joint tenants or tenants in common (s222), may apply to the Victorian Civil and Administrative Tribunal (VCAT) for an order for sale and division of proceeds or physical division or a combination of both (s225(1) and (2)). No particular matters are specified as requiring proof for the grant of any form of relief, nor are any particular matters nominated as defences. Part IV has been said to be part of general legal policy favouring alienability, embodying a principle of, in the words of Deputy President Michael Macnamara, “no fault divorce” for co-ownership. Equitable and legal co-owners are covered by the legislation. VCAT’s jurisdiction is wide but does not, for example, cover a claim for damages unrelated to land or concerning an executor’s performance.

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