Joint owners of a piece or pieces of land may want, or need, to
redistribute the land among themselves and so become individual
owners of a defined portion of that land (or of a sectional title
unit) in their own names. This can be done in terms of section 26
of the Deeds Registries Act and a partition agreement.
To be able to effect a redistribution by way of a partition
agreement the joint owners must each own an undivided share of the
land they wish to partition. The agreement must apportion a defined
piece of that land to each of the joint owners and may not simply
be an agreement to redistribute their respective shares in the land
among themselves. All the owners must be parties to the
There are several circumstances in which the partitioning of
property may be appropriate or useful.
1. If X and Y are joint owners in a
property and wish to construct their own separate dwellings on the
property, they may, with the local authority's consent,
sub-divide the property and transfer each subdivision into their
own respective names. X and Y will thus own separate portions of
the property under their own title instead of joint undivided
shares in the property.
2. If X, Y and Z are joint owners in a property, a partition
agreement may be concluded whereby X will own a specific portion
and Y and Z may own the remainder of the property jointly.
3. If X and Y are joint owners of properties "P" and
"Q", a partition agreement may partition the ownership of
the two properties so that property "P" will belong
solely to X and property "Q" solely to Y. If, for
instance, property "P" is worth R2 million and property
"Q" is worth R1 million, X may make an equalisation
payment to Y for the additional value received in the
4. Joint owners of freehold property could erect buildings
comprising more than one unit, open a sectional register and by
means of a partition agreement transfer a unit to each of them
The advantage of using a partition agreement is that, unlike a
sale or exchange agreement, it does not attract transfer duty. The
only exception to this rule is in cases where an equalisation
payment, as explained above, is made. In such cases, transfer duty
is payable in respect of the value of the equalisation payment.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Precautionary attachment is a form of interim protection in
cases of urgency. It involves funds being held by the judiciary to
prevent the party under attachment from disposing of such funds to
the detriment of the attachment applicant.