What is co-ownership of land?
The word "co-ownership" in relation to land means that two or more people own land simultaneously in undivided shares. A share in land does not represent, and may not be held to represent a defined portion of land. A co-owner who holds a share in land does not hold title to a defined piece of land even if by arrangement with his co-owners who might have agreed to give him occupation of a specific portion of land. The title he has is to an undivided share only, in the whole of the land, held in joint ownership. The portion he occupies is owned jointly by him and his co-owners in the whole thereof. If he should build a house on the portion he occupies, the house will be owned jointly.
If there are three co-owners of a farm, they are not each entitled to a physical part of the farm but each of them has an undivided share in the whole of the farm. The shares will not always be equal. One person can have half a share while the other two can each have a twenty-five percent share. However, co-ownership unfortunately often leads to disputes among the owners.
Co-operation between the co-owners
It is advisable that co-owners enter into an agreement which regulates their relationship. Unfortunately, this agreement will have no bearing against third parties. The consent of all the co-owners is required when administrative decisions have to be made. No owner is entitled to change or improve the property without the consent of the other owners. All the owners have to agree to the use of the property, e.g. they have to agree to the chopping down of trees, the erection of a storage facility/building, or to let cattle graze in the field. If co-owners are not consulted they may request an interdict from the court. The court may even order that buildings that have been erected, be removed. However, in instances where the aim is to preserve the property, it is not always necessary to obtain the consent of the co-owners.
The profits and losses of co-ownership
All the co-owners must contribute proportionally to necessary and also useful expenses for the preservation of the property. Such expenses include taxes and expenses to keep the property in good condition, but do not include luxury expenses. Losses and charges must be shared by the co-owners, except those attributable to negligence of one of the owners. As with expenses, fruits and profits must be divided among the co-owners according to each owner’s shareholding.
Alienation of a share
A co-owner may alienate his share or even bequeath it to his heirs, without the consent of the other owners, even against their will. A co-owner’s share may also be attached by the sheriff.
Use of the property
Each co-owner may use the property in accordance with his/her undivided share. They must, however, use it with due regard to the rights of the other co-owners. Each co-owner and his/her employees and guests are entitled to free entry to any part of the property, except if the co-owners have agreed that a portion of the property is reserved for the exclusive use of one co-owner.
Co-owners may decide to partition the property, usually if they cannot agree on the utilisation of the property. The property will then be divided physically in accordance with the value of the property and each owner’s share in it. When this is uneconomic, which is usually the case with a farm, the property can be awarded to one co-owner, but he must then compensate the other co-owners. The court may also order that the property be sold by public auction and the proceeds divided among the co-owners. There is strict statutory control over the subdivision of land and also the actual physical division and use of land, so that partition may not always be possible.
Co-ownership is an excellent vehicle to becoming an owner of a property that one otherwise might not be able to afford. However, be aware of the pitfalls, choose your co-owners wisely, and draw up an agreement to regulate payment of the bond and rates, the day-to-day expenses and house rules.
Author: Legal Department