Introduction
Co-ownership of property is often born of trust, family, or opportunity. Two or more people come together to acquire a home, an investment property, or land, sharing ownership in undivided shares. While this arrangement may function smoothly for a time, co-ownership can easily turn contentious when relationships shift, financial circumstances change, or one party simply wishes to exit the arrangement.
South African law recognises that no one should be trapped in co-ownership indefinitely. The actio communi dividundo, literally “the action for dividing property held in common”, exists precisely to free co-owners from an arrangement that has become untenable.
The Legal Foundation: Co-Ownership and the Right to Divide
Under South African common law, co-ownership arises when two or more persons each hold an undivided share in the same property. Each co-owner is entitled to use and enjoy the property reasonably and in proportion to their share, and each bears an equivalent duty to contribute to its maintenance and expenses.
However, co-ownership is not a permanent state of affairs. The Supreme Court of Appeal in Robson v Theron 1978 (1) SA 841 (A) affirmed the principle that “no co-owner is normally obliged to remain such against his will.” This foundational rule underpins the actio communi dividundo. It provides a co-owner with a legal mechanism to compel division of the jointly owned property when agreement cannot be reached.
Applying the Actio Communi Dividundo
The actio communi dividundo allows a co-owner to approach the court for an order terminating co-ownership. The court, in exercising its broad equitable discretion, may determine how best to achieve a fair and practical division.
In some cases, the court may direct that the property be sold and that the net proceeds, after deducting necessary expenses, be distributed in proportion to the parties’ ownership shares. In others, the court may permit one co-owner to purchase the other’s share at a value determined through independent valuation or judicial oversight.
Where factual disputes arise, such as disagreements over contributions, improvements, or profits enjoyed, the court may refer the matter for oral evidence or appoint a receiver or liquidator to manage the process. The essential aim remains to dissolve the co-ownership fairly, ensuring that neither party is unduly prejudiced.
Bound and Free Co-Ownership
The law distinguishes between “bound” and “free” co-ownership. In “free” co-ownership, the shared ownership of the property is the sole legal relationship between the parties: for example, two siblings inheriting a home in equal shares or friends purchasing a property together. Such co-ownership can be terminated relatively straightforwardly through the actio communi dividundo.
“Bound” co-ownership, by contrast, arises where the shared property is tied to another underlying legal relationship, such as marriage in community of property or a universal partnership. In PN v AE 2024 JDR 3989 (WCC) and Kader v Modack2023 JDR 4592 (WCC), the courts emphasised that co-ownership between spouses or partners cannot necessarily be unravelled independently of those relationships. Divorce proceedings, accrual claims, or disputes about the existence or dissolution of a universal partnership may complicate or delay the exercise of the actio.
Judicial Discretion and Equitable Outcomes
The court’s discretion in applying the actio communi dividundo is intentionally wide. In Abrahams v Edross 2024 JDR 5147 (WCC), the court reiterated that it may adopt any method of division that is fair and equitable in the circumstances. This may include ordering a public auction, appointing a receiver to manage the sale, or awarding the property to one co-owner on condition that they compensate the other.
The remedy also extends to claims ancillary to the division, such as reimbursement for necessary improvements or expenses incurred in connection with the joint property, or adjustment for profits received by one co-owner to the exclusion of another. These personal claims, however, must be clearly pleaded and substantiated.
Practical Considerations and Common Pitfalls
Although the principle is simple i.e. that no one should be forced to remain a co-owner; the practical application of the actio communi dividundo can be fraught with complications. Establishing the fact of co-ownership is the first step, typically achieved through the title deed or deed of transfer. Where the co-ownership arises from inheritance or settlement agreements, these documents must be carefully scrutinised for any provisions that may bind the parties to continued joint ownership.
Courts also expect that parties will have attempted to resolve matters amicably before litigation is launched. Evidence of failed negotiations or unreasonable refusal by one party may influence the court’s decision on costs.
Disputes over financial contributions or improvements to the property are another frequent obstacle. In Ismail v Ismail 2023 JDR 1392 (WCC), the court noted that material factual disputes about contributions can necessitate the matter proceeding by way of action rather than motion. The procedural route chosen, application or action, will therefore depend on whether disputes of fact exist that cannot be resolved on paper alone.
Why Legal Guidance Matters
While the actio communi dividundo provides a clear route to end co-ownership, it is a remedy that requires careful navigation. The procedural form must align with the factual matrix. Ancillary claims for expenses or improvements must be properly set out. The presence of underlying relationships, such as marriage or partnership, must be accounted for.
For these reasons, parties seeking to dissolve co-ownership should obtain specialist legal advice before approaching the court. A practitioner experienced in property and family law can ensure the necessary evidence is gathered, the correct procedure followed, and the ultimate outcome both fair and enforceable.
Conclusion
Co-ownership may begin as a relationship of mutual trust and convenience, but when it turns sour, the law offers a dignified and equitable escape. The actio communi dividundo embodies the principle that ownership should never be a prison.
By invoking this ancient but enduring remedy, co-owners can bring an end to shared ownership and move forward, freed from the legal and emotional ties that once bound them together.
For assistance in resolving co-ownership disputes or pursuing an actio communi dividundo, contact SchoemanLaw Inc. Our team offers experienced guidance to help you untie the co-ownership knot with clarity and confidence.
Kerri Stewart | SchoemanLaw Inc
Attorney
For personalised advice tailored to your needs, consult an attorney at SchoemanLaw.
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