'All Good Things Must Come to an End': Terminating Co-Ownership Under the 'Old' Partition and Sale Rules

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Abstract

Despite its benefits, co-ownership of land creates problems where relations between the parties
have soured, or one person simply wants to extricate themselves from this arrangement. The
remedies of compulsory partition and sale allow one joint tenant or tenant in common to terminate
co-ownership against the wishes of the others, by seeking a court order to this effect. Throughout
parts of the common law world, this has be en based on nineteenth century English legislation namely
the Partition Act 1868, the key elements of which remain in force in Western Australia,
South Australia, Tasmania and the Australian Capital Territory. This article provides an up-to-date
analysis of the law on compulsory partition and sale as derived from the 1868 Act and analogous
provisions, drawing not only on Australian cases, but on frequently overlooked decisions from
courts in both parts of Ireland and in parts of Canada, as well as ‘old’ English judgments on the
1868 Act.
Original languageEnglish
Pages (from-to)227-250
Number of pages24
JournalAustralian Property Law Journal
Volume21
Publication statusPublished - 2013

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