Key Post What is the legal procedure to force the sale of a house on an uncooperative joint owner?

Brendan Burgess

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Mary and John bought a house together.

The split up years ago when the house was in deep negative equity. They were not married. There are no kids.

Mary left and as far as John knows, is living abroad and not contactable.

He has paid the mortgage in full since, and there is now €100k positive equity.

John now wants to sell the house.

What are the steps needed to do this?
How long would it take?
And how much would it cost?

Brendan
 
Section 31 of the Land Reform and Conveyancing Act 2009 provides that any co-owner of property may apply to the High Court for an order for sale of the land and distribution of the proceeds as the court directs.

As with any court process, it is unlikely to be cheap or fast.
 
Sarenco

That is excellent thanks. I googled it and found very little on it apart from the Section itself.

Court orders.31.— (1) Any person having an estate or interest in land which is co-owned whether at law or in equity may apply to the court for an order under this section.
(2) An order under this section includes—
[PA 1868][PA 1876]
(a) an order for partition of the land amongst the co-owners,
(b) an order for the taking of an account of incumbrances affecting the land, if any, and the making of inquiries as to the respective priorities of any such incumbrances,
(c) an order for sale of the land and distribution of the proceeds of sale as the court directs,
[AJA 1707, s. 23]
(d) an order directing that accounting adjustments be made as between the co-owners,
(e) an order dispensing with consent to severance of a joint tenancy as required by section 30 where such consent is being unreasonably withheld,
(f) such other order relating to the land as appears to the court to be just and equitable in the circumstances of the case.
(3) In dealing with an application for an order under subsection (1) the court may—
(a) make an order with or without conditions or other requirements attached to it, or
(b) dismiss the application without making any order, or
(c) combine more than one order under this section.
(4) In this section—
(a) “person having an estate or interest in land” includes a mortgagee or other secured creditor, a judgment mortgagee or a trustee,
(b) “accounting adjustments” include—
(i) payment of an occupation rent by a co-owner who has enjoyed, or is continuing to enjoy, occupation of the land to the exclusion of any other co-owner,
(ii) compensation to be paid by a co-owner to any other co-owner who has incurred disproportionate expenditure in respect of the land (including its repair or improvement),
(iii) contributions by a co-owner to disproportionate payments made by any other co-owner in respect of the land (including payments in respect of charges, rates, rents, taxes and other outgoings payable in respect of it),
(iv) redistribution of rents and profits received by a co-owner disproportionate to his or her interest in the land,
(v) any other adjustment necessary to achieve fairness between the co-owners.
(5) Nothing in this section affects the jurisdiction of the court under the Act of 1976, the Act of 1995 and the Act of 1996.
(6) The equitable jurisdiction of the court to make an order for partition of land which is co-owned whether at law or in equity is abolished.
 
Do you know is there have been any judgements handed down under this Section?

I know it's hard to quantify. But if John went to the High Court and Mary ignored the proceedings, what would be the range of costs? Would it be €10k or €100k or €500k?
 
I know the Courts have declined to make Section 31 orders for the benefit of unsecured creditors but I'm not aware of any judgments on point.

In terms of costs, I would guess a figure of around €10k might be reasonable for budgeting purposes.
 
OK , in the scale of things €10k is not too bad.

(c) an order for sale of the land and distribution of the proceeds of sale as the court directs,

So the judge could say:
John has paid the mortgage for the last few years. The house is to be sold and any surplus on sale is to go to John.

Or, the house is to be sold and the net proceeds are to be split.

What does a partition mean:
(a) an order for partition of the land amongst the co-owners,

Let's say John wants to keep the house but get Mary off the deeds.

Could the Judge make that order. Of course John and Mary stay on the mortgage. But that would be of no concern to John.

Brendan
 
Brendan Burgess said:
What does a partition mean:
(a) an order for partition of the land amongst the co-owners,
Click to expand...
Partition refers to the apportionment of a property between co-owners so that each becomes the full owner of a part only. For example, dividing up a commonage between individual farmers.
Brendan Burgess said:
Let's say John wants to keep the house but get Mary off the deeds.

Could the Judge make that order.
Click to expand...
Yes, in principle, but I doubt a judge would make such an extreme order unless it could be demonstrated that Mary contributed absolutely nothing, directly or indirectly, to the house purchase.
 
Sarenco said:
In terms of costs, I would guess a figure of around €10k might be reasonable for budgeting purposes.
Click to expand...

Would that be barrister fees only? Or inclusive of solicitor fees as well? Presumably you'd need to demonstrate you'd exhausted all avenues to contact the other party.
 
Sarenco said:
€10k is really just a guess on my part - it could well be more.
Click to expand...
Anecdotally this situation seems pretty common.

I know property rights are property rights and there is good reason for protecting them. But it seems pretty expensive and time-consuming in a case of what is essentially abandonment. You could be spending 10% of the value of the property just to set this right.
 
In this particular case, John would be happy to get the house sold for "only" €10k.

The alternative is that he continues paying the mortgage for years and Mary comes back and says "half that is mine"

Brendan
 
Having provided Expert Witness reports in such cases I can say the following:

I haven't seen any judgments yet on Section 31, as they generally settle.

If it is a family law matter,then the split of the house is part of the costly process.

If it is a "partnership" type case, which is not heavily contested, then ballpark costs could be:

  • Solicitor €5,000 - €7,000 + VAT
  • Barrister: €3,000 - €5,000 + VAT
  • Expert Witness (to do mathematical calculations etc) €4,000 - €5,000+ VAT
Jim Stafford
 
Hi Jim

That is really helpful. More expensive than Sarenco's guesstimate, but still worth paying to get it clear.

In this particular case, Mary has gone so there is unlikely to be any sort of dispute. She could, of course, resurface and might do a deal, although it seems unlikely.

Brendan
 
Would the costs above be divided between both parties or paid by the person taking the case to force the sale?
Would costs be awarded by the judge if for example one party refused to engage or discuss and the other party had no choice but to proceed to court?
(This is based on both parties being present and contactable but one party refusing to engage)
Thanks
 
Sarenco said:
may apply to the High Court for an order for sale
Click to expand...

Hi Sarenco

I have been told of a case where they are seeking an order for such a sale in the Circuit Court.

You specified the High Court. Was that in the legislation or did you assume that?

Brendan
 
Brendan Burgess said:
You specified the High Court. Was that in the legislation or did you assume that?
Click to expand...
Well, references to “the court” in legislation normally means the High Court.

But it’s certainly possible that court rules allow the Circuit Court to hear cases under this section.
 
Most cases are in the Circuit Court given that its jurisdiction level is €3 million. Most Circuit Court judgments are not published.

As stated previously, there have been very few High Court judgments on Section 31m as most cases are settled.

Jim Stafford
 
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