E v F, G and H [2021] JRC 197 (26 July 2021)

E v F, G and H [2021] JRC 197 (26 July 2021)

Licitation is a remedy of last resort and should not be ordered until the respective interests of the parties in the property have been determined. The agreement between the parties does not provide a workable mechanism for determining those interests, and immediate licitation would risk injustice, particularly given the property is a home for the child and other parties. The application for licitation is therefore refused as premature; the parties' interests must first be determined, and mediation is strongly encouraged.

Citation
[2021] JRC 197
Parties
Plaintiff: Plaintiff (E); First Defendant: First Defendant (F); Second Defendants: Second Defendants (G and H); Former Co Owner: First Defendant's Brother (J)
Jurisdiction
Jersey
Judgment Date
26 July 2021
Procedural Posture
Application for Summary Judgment / Judgment on Application for Order for Licitation
Outcome
application for licitation refused; proceedings stayed
Legal Topics
Licitation, Co Ownership, Partition of Property, Summary Judgment, Unjust Enrichment, Mediation, Family Law Considerations
Property Law Civil Procedure Licitation Co Ownership Partition of Property Summary Judgment Unjust Enrichment Mediation +1 more

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Parties

Plaintiff (E)

Plaintiff

First Defendant (F)

First Defendant

Second Defendants (G and H)

Second Defendants

First Defendant's Brother (J)

Former Co Owner

Procedural Posture

Application for Summary Judgment / Judgment on Application for Order for Licitation

Legal Issues

  1. 1 Whether the plaintiff is entitled to an immediate order for licitation (forced sale) of jointly owned property
  2. 2 Whether the parties' agreement excludes or postpones the remedy of licitation
  3. 3 Whether the interests of the parties in the property must be determined before licitation can be ordered

Ratio Decidendi

Licitation is a remedy of last resort and should not be ordered until the respective interests of the parties in the property have been determined. The agreement between the parties does not provide a workable mechanism for determining those interests, and immediate licitation would risk injustice, particularly given the property is a home for the child and other parties. The application for licitation is therefore refused as premature; the parties' interests must first be determined, and mediation is strongly encouraged.

Court Disposition

application for licitation refused; proceedings stayed

Orders

  • Plaintiff's application for licitation is dismissed as premature.
  • Proceedings are stayed to allow determination of the parties' respective interests in the property.