RES exam question on Land Law: Ben and Clara own a private condominium unit as equal tenants in common
Ben and Clara own a private condominium unit as equal tenants in common. The relationship has broken down, Ben wants to sell, and Clara refuses. Which is/are correct? (i) Ben has an absolute right to have the unit partitioned or sold. (ii) The court may order a sale instead of partition, dividing the proceeds by their shares. (iii) Once a sale is ordered, the court can direct someone to sign the transfer if Clara refuses. (iv) Ben may sell his undivided half share to a third party without Clara's consent.
- A(i) and (ii) only
- B(ii) and (iii) only
- C(i), (ii) and (iii) only
- D(ii), (iii) and (iv) only
Show answer & explanation
Answer
D. (ii), (iii) and (iv) only
Explanation
Issue: the routes out of a deadlocked co-ownership. Rule: the court's power comes from section 18(2) of and paragraph 2 of the First Schedule to the Supreme Court of Judicature Act 1969 — to partition land and to direct a sale instead, and in any cause relating to land to order a sale where necessary or expedient, with consequential directions. It is a discretion, not a right: in Su Emmanuel v Emmanuel Priya Ethel Anne the Court of Appeal weighed the relationship, the state of the property and the prejudice to each side, and said a sale will not usually be ordered in breach of a prior agreement between the co-owners. Application: (i) fails because Ben has no absolute right. (iv) is right in law — a tenant in common's specified share is a separate registrable interest he may transfer without the other's consent, though few buyers want half of a flat, which is why the court route is the practical one. Conclusion: (ii), (iii) and (iv).
Study the concept behind this question: Restrictions on Capacity to Hold Land — Minors, Companies, Societies & the Mental Capacity Act
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