Dispute Resolution in Property Co-ownership

Resolving a property co-ownership dispute can be complex with manifold legal ramifications. Co-ownership is most common in joint tenancy or tenancy in common in Australia and conflict can arise where parties do not agree on the nature of the sale of the property. Co-ownership is defined in s 66F of the Conveyancing Act 1919 (NSW) (Conveyancing Act) as ‘ownership whether at law or in equity of possession by two or more persons as joint tenants or as tenants in common.’ When dispute does arise, co-owners often look to s 66G of the Conveyancing Act which allows the Court to make a sale of the property even if one party objects. Through a Court appointed trustee, s 66G allows for an impartial sale process for both parties. Often the mere threat of s 66G prompts parties to resolve the dispute themselves to avoid the potential appointment of a trustee in selling the property as both parties would lose most control of the sale. Parties may also opt to buy the other co-owner out. Whilst most applications under s 66G are heard on a case-by-case basis, the Court will often make an order unless it is inequitable to do so. Inequitableness requires a high evidentiary burden and is often only found where there is a conflict with contractual or fiduciary obligations. Inequitableness may also be found where an order would be inconsistent with a proprietary right. Hardship or unfairness, however, may not be deemed grounds for refusal of a s 66G order. Once an order has been granted by the Court, the property vests with the trustee who will primarily aim to sell the property. Ultimately, s 66G of the Conveyancing Act is seen as a legal mechanism to resolve disputes efficiently in instances of property co-ownership.