This week our experts deal with a sticky situation involving the joint ownership of a property – proving that a problem shared is not always a problem halved.
A reader writes that his mother passed away some 30 years ago, leaving her fixed property to be shared equally between him and his brother.
He says that his brother never once used the property, whereas the reader used it as a holiday home.
It appears that no agreement was ever reached between the brothers concerning the payment of running expenses and maintenance costs.
As is often the case in a situation like this, the reader’s brother now wishes to sell his half of the property and has asked that it be valued to determine what his share is worth.
The reader is frustrated that he has had to carry all the property-related expenses over the last three decades and, on top of that, is now expected to pay out his brother’s half-share.
Joint property ownership can be somewhat problematic if the rights and obligations of each party are not set out contractually from the start, says Rian du Toit from DTS Attorneys in Port Elizabeth.
“As the reader mentions, there is a continuous stream of running expenses that have to be paid in order to maintain the property.”
However, says Du Toit, one should not forget about the other side of owning property – the use and enjoyment thereof.
“Remember that joint ownership means that the two (or more) owners each have an undivided proportionate share in the property. In practice, of course, the reader uses the whole property when he stays there over holiday periods.”
Because a portion of the property belongs to his brother, Du Toit says he has technically had the use and enjoyment of someone else’s property for almost 30 years.
“The theoretical result of this is that he may be liable for ‘rental’ for the portion of the property he used that did not belong to him.”
According to Charlotte Vermaak from Chas Everitt in Port Elizabeth, neither owner has ever laid claim to maintenance expenses or rental earned. “The issue of prescription (legal claims founded on the basis of long-standing use) should therefore be kept in mind when establishing their respective rights.
“A joint owner can at any stage sell his undivided share in the property. It would make sense that he offers it to the other owner first, but there is also nothing stopping him from offering it to a third party.”
Practically of course, says Vermaak, it is doubtful that a third party would purchase such a share because of the minefield of issues that comes along with it. “In this instance, it is also doubtful that our reader’s brother could force the sale of the entire property.”
Vermaak says the reader should therefore consider his position carefully. “Perhaps a proper valuation of the property, along with a discussion relating to each person’s respective claim for rental and expenses, could lead to an amicable settlement of the situation.”
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