Dispute Resolution Co-Owned Land

TLATA 1996

Statute governing trusts of land and resolving co-ownership disputes

Disputes in co-ownership

Common over sale, occupation, or use of property

Reason disputes arise

Breakdown of relationships or creditor pressure for sale

TLATA s 14

Court’s power to resolve disputes relating to co-owned land

Who can apply (s 14)

Trustees, beneficiaries, mortgagees, trustees in bankruptcy, charge holders

Court powers (s 14)

Can order sale, occupation, or determine extent of interests

Limitation (s 14)

Court cannot force one co-owner to buy out another

Common order

Order for sale (may be postponed)

TLATA s 15

Factors court must consider when deciding s 14 applications

Approach under s 15

All factors must be considered equally (no picking and choosing)

s 15(1)(a)

Intentions of persons who created the trust

Relevance of s 15(1)(a)

Less relevant in typical co-ownership cases

s 15(1)(b)

Purpose for which property is held

Key test (purpose)

Whether original purpose is still continuing

Effect (continuing purpose)

Weighs against sale

Re Evers’ Trust [1980]

Family home with children → purpose continues → no sale

Jones v Challenger [1961]

Marriage ended → purpose ended → sale ordered

Key principle (purpose)

Joint purpose cannot be carried out unilaterally

s 15(1)(c)

Welfare of any minor occupying or expected to occupy property

Effect (minors)

Younger children → stronger weight against sale

Older minors

Less weight if independent (e.g. age 17)

s 15(1)(d)

Interests of secured creditors

Pre-TLATA approach

Strong presumption in favour of sale for creditors

Post-TLATA approach

No presumption; creditor interest is one factor

Mortgage Corporation v Shaire [2001]

Confirmed no automatic priority for creditors

Modern trend

Courts increasingly favour creditors in practice

Bank of Ireland v Bell [2001]

Sale ordered due to large unpaid debt and near-adult child

Putnam v Taylor [2009]

Sale ordered as alternative housing possible

Fred Perry v Genis [2015]

Sale ordered despite impact on children; postponed for relocation

s 15(3)

Court considers wishes of beneficiaries aged 18+

Majority rule (s 15(3))

Court considers majority by value of shares in dispute

Overall balancing test

Court weighs all factors to reach fair outcome

Key practical point

Creditors often given significant weight in modern cases

Final takeaway

TLATA gives court flexibility to balance fairness, purpose, and financial interests