A reader who co-owns a fixed property with his ex-girlfriend wants to know if he can sell his share and force her to take over the bond in what he calls a timely manner.
He and his then-girlfriend purchased a property four years ago, which was jointly registered in their names.
The reader vacated the property following a break-up more than two years ago and now wishes to purchase a new property.
However, he is concerned he will not qualify for a bond because the bond in respect of the co-owned property still exists.
He says his ex-girlfriend is not willing to sell the property and wants to take full ownership.
See the reader’s question here.
The reader is happy for her to take ownership but says she is in no hurry to effect this arrangement.
He has no knowledge of her financial position and is unsure whether she will qualify for a full bond on the property.
There is no indication of the parties’ thinking on the fixed property at the time of the break-up.
Practically, it would have made sense for the parties to have dealt with this particular aspect at that time.
But, in the circumstances, it appears that certain agreements and concessions were reached in respect of the property.
Unfortunately this is often the case and only when the arrangement has a direct impact on the life of one of the parties does that party seek to resolve the matter in a more final manner.
Co-ownership of a fixed property generally entitles each owner to reasonable use, which is in proportion to the undivided share held in that property.
Similarly, all profits, expenses and losses that arise from the co-ownership are shared between the owners.
From a legal perspective, the reader is free to sell his share of the co-owned property, although this has certain practical implications and limitations.
The sale of 50 per cent of the property would have to be effected to a purchaser who is willing to own only half of what is clearly a residential property.
The issue of the jointly held bond would also have to be resolved in such an instance.
It should be made clear, however, that the reader’s right does not extend to the sale of the full property, but merely his undivided share.
As it is unlikely a third party would be willing to purchase an undivided half-share in the co-owned property, the reader would have to consider an alternative remedy.
The law provides for the division of a co-owned property. This, however, will only be a practical solution if the property concerned is capable of sub-division, which seems unlikely in this instance.
Thus, on application to court and failure to agree to a manner in which a property can be sub-divided, the court will make an order as to what it considers fair and equitable in the circumstances.
In the current instance, a fair solution may be to order that one party purchases the interest of the other.
Where, however, neither party is able to qualify for a bond for the full value, a fair and equitable solution may be for the court to order that the fixed property be sold and the proceeds divided between our reader and his ex-girlfriend.
In calculating what amount each party is entitled to, consideration may be given to what amounts have been expended in respect of, for example, the repayment of the bond.
Although there is no information, it is quite possible that the reader’s ex-girlfriend has been paying the full bond on the property since he vacated it.
Again, this serves as a cautionary tale to would-be co-owners who should carefully consider formalising an agreement between them prior to incurring liabilities that have far-reaching consequences.
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