RES exam question on Land Law: Ms Priya holds a 40% share as tenant in common in a private apartment
Ms Priya holds a 40% share as tenant in common in a private apartment; Mr Ravi holds 60% and refuses to sell. Which is/are correct? (i) She may ask the court to order a sale instead of partition. (ii) The power to do so comes from section 18H of the Conveyancing and Law of Property Act. (iii) She may sign a sale agreement for the whole flat that binds Mr Ravi without a court order. (iv) The court may refuse a sale, for example where it would breach a prior agreement between them.
- A(i) and (iv) only
- B(i), (ii) and (iv) only
- C(ii) and (iii) only
- D(i), (ii), (iii) and (iv)
Show answer & explanation
Answer
A. (i) and (iv) only
Explanation
Issue: the source of the power to break a co-ownership deadlock, and its limits. Rule: the court's power to order a sale instead of partition comes from section 18(2) of and paragraph 2 of the First Schedule to the Supreme Court of Judicature Act 1969. There is no section 18H of the Conveyancing and Law of Property Act — that Act's sections 18 and 18A deal with forfeiture of leases. Application: the power is discretionary. In Su Emmanuel v Emmanuel Priya Ethel Anne the Court of Appeal listed the factors — the parties' relationship, the state of the property, the relative prejudice — and said a sale will not generally be ordered where it would breach a prior agreement between the co-owners about disposal. A minority owner cannot bind the other by signing for the whole, though she may sell her own share. Conclusion: (i) 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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