How the Actio Communi Dividundo frees the ties that bind
When two or more people acquire ownership of the same property, they each hold an undivided share in that property. This arrangement is referred to as co‑ownership or joint ownership. In theory, co‑ownership can operate smoothly – particularly when the owners have a close personal or family connection or share a business interest. In practice, however, co‑ownership can (and often does) give rise to disputes about the day‑to‑day running of the property, payment of expenses, and, crucially, how and when one party may "get out" of the arrangement.
"No One is Forced to Remain a Co‑Owner Forever"
South African law recognises that no co‑owner is obliged to remain in co‑ownership against their will. The Supreme Court of Appeal confirmed this principle in the well-known case of Robson v Theron (1978 (1) SA 841 (A)), and it continues to appear in High Court judgments dealing with the actio communi dividundo. Examples include Kader v Modack and Another 2023 JDR 4592 (WCC); Ismail v Ismail and Another 2023 JDR 1392 (WCC); Abrahams v Edross and Another 2024 JDR 5147 (WCC); PN v AE 2024 JDR 3989 (WCC); Marogoa v Marogoa and Others 2023 JDR 0198 (FB); and Crawford v Goodman 2022 JDR 1798 (GJ).
In simple terms, the law understands that circumstances change – relationships deteriorate, or financial goals shift—and an owner who wants out must be allowed an exit route. The tool for that is the actio communi dividundo, literally the action for dividing property held in common.
Applying the Actio Communi Dividundo
A co‑owner who wishes to terminate the shared ownership of property may approach a court for an order that:
- Confirms each party's undivided share, and
- Determines how the division or sale of the property must take place.
Courts have broad discretion to craft a fair result. In some matters, it is simplest to order that the property be sold and the proceeds shared according to each owner's proportionate share. In others, where one co‑owner wants to purchase the other's share and can afford to do so, the court may authorise that transfer, with the leaving co‑owner receiving fair compensation. Occasionally, especially where there is a strong personal or family dimension, the court may consider appointing a receiver or liquidator to oversee the sale or distribution.
Sources of Complication: "Bound" vs. "Free" Co‑Ownership
Although every co‑owner in principle has the right to end co‑ownership, certain relationships can complicate or (in rare scenarios) temporarily delay the process. For example:
- Co‑ownership arising from marriage: In PN v AE 2024 JDR 3989 (WCC) and Kader v Modack 2023 JDR 4592 (WCC), the courts highlighted that property jointly registered during a marriage might be treated as "bound" co‑ownership for so long as the marriage itself persists. Questions of divorce, accrual claims, and maintenance obligations can make immediate partition or sale more complex.
- Universal partnerships: When parties are in a long-term relationship, run a business together, or pool resources for mutual benefit, they may be in a "universal partnership." In that scenario, the co‑ownership of a particular asset (a property) may be intertwined with broader claims about the partnership's existence, finances, and dissolution. (Crawford v Goodman 2022 JDR 1798 (GJ) illustrates how disputes over a de facto or tacit partnership can hold up the normal application of the actio communi dividundo.)
- Settlements or conditions in a divorce: In Ismail v Ismail and Another 2023 JDR 1392 (WCC) and Abrahams v Edross and Another 2024 JDR 5147 (WCC), divorcing spouses had signed settlement agreements indicating that they would remain co‑owners in certain property after divorce. Courts then had to parse the wording of those settlements and weigh whether or not a "locked‑in" co‑ownership had been created (and, if so, whether that prevented immediate application of the actio).
Practical Tips and Pitfalls
1. Establish the Co‑Ownership Clearly
The co‑owner seeking termination must prove the fact of joint ownership – usually by reference to the title deed or other official registration documents. A disagreement on that point can delay matters.
2. Consider Contractual or Settlement Terms
If the co‑ownership arose out of a divorce or a broader settlement agreement, or if there is any possibility of a universal partnership, the court may require resolution of those background issues before it will order a division or sale.
3. Prove Attempts at Settlement
Courts generally expect co‑owners to have tried to resolve how to exit the arrangement amicably. Demonstrating that one party unreasonably refused to cooperate can assist in obtaining an adverse costs order against that party.
4. Beware of Genuine Factual Disputes
If one co‑owner claims they contributed more to the property's upkeep or invested in improvements – and wants compensation before or after a sale – significant factual disputes can arise. In Abrahams v Edross 2024 JDR 5147 (WCC) and Ismail v Ismail 2023 JDR 1392 (WCC), the courts stressed that if such disputes are material, the court might require an action trial (with oral evidence) or appoint a receiver/liquidator to untangle the claims.
5. Court's Equitable Discretion
Ultimately, the court's goal is an equitable solution that ends the co‑ownership cleanly and fairly. That might mean:
- Selling by public auction and dividing net proceeds,
- Ordering one co‑owner to purchase the other's share at a fair price,
- Having the property valued by a referee, or
- Appointing a neutral receiver to finalise the sale and distribution.
The actio communi dividundo is grounded in the principle that no one can be forced to remain a co‑owner unwillingly. In straightforward situations – where there is no complex back‑story of marriage regimes, universal partnerships, or major factual disputes about contributions – the action provides a direct path to exit co‑ownership by either partitioning or ordering a sale of the property.
However, as shown in the recent unreported Western Cape and Gauteng decisions (Kader, Abrahams, Ismail, PN v AE, Marogoa, Crawford), co‑ownership often arises in sensitive family or relationship settings, making the path far from straightforward. Protracted disputes about settlement agreements, marriages and divorce orders, or one party's larger financial outlay can stall the process. As a result, parties contemplating co‑ownership of property – or seeking an exit from it – should keep in mind that the courts ultimately will partition or order a sale, but the journey there can become lengthy and costly if foundational questions (like divorces, partnerships, or contribution disputes) are first in need of resolution.
Where co‑owners face irreconcilable differences or simply prefer not to share ownership, they should attempt an amicable buy‑out or sale early on. Failing that, the law – through the actio communi dividundo – empowers each to ask the court to enforce a fair division and thus end co‑ownership once and for all.
References:
- Kader v Modack and Another 2023 JDR 4592 (WCC)
- Abrahams v Edross and Another 2024 JDR 5147 (WCC)
- Ismail v Ismail and Another 2023 JDR 1392 (WCC)
- Marogoa v Marogoa and Others 2023 JDR 0198 (FB)
- PN v AE 2024 JDR 3989 (WCC)
- Crawford v Goodman 2022 JDR 1798 (GJ)
- Robson v Theron 1978 (1) SA 841 (A)
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.
