Dougans v Dougans (27975/2018) [2019] ZAGPJHC 25 (7 February 2019)

Dougans v Dougans (27975/2018) [2019] ZAGPJHC 25 (7 February 2019)

The court held that the applicant is entitled to terminate the joint ownership of the property under the actio communi dividundo. The respondent's consent is not required for the termination and sale. The court exercised its discretion to order the sale of the property, setting out a procedure for appointment of estate agents, a minimum sale price, and mechanisms to ensure compliance, including authorising the Sheriff to act if the respondent fails to cooperate. Costs of the application and sale are to be apportioned equally, with the respondent bearing the taxed costs of the application, payable from his share of the sale proceeds if necessary.

Citation
[2019] ZAGPJHC 25
Parties
Applicant: Dougans, Troy Lance; Respondent: Dougans, Glenn Gary
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
7 February 2019
Case Number
27975/2018
Procedural Posture
Civil Application / Final Judgment
Outcome
Application granted. Joint ownership terminated and property to be sold under court-directed procedure.
Judges
A Gautschi
Legal Topics
Co Ownership Partition, Actio Communi Dividundo, Sale of Immovable Property, Costs Order
Land and Property Civil Procedure Co Ownership Partition Actio Communi Dividundo Sale of Immovable Property Costs Order

Case Brief

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Parties

Dougans, Troy Lance

Applicant

Dougans, Glenn Gary

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to terminate joint ownership of the property.
  2. 2 What procedure should govern the sale of the jointly owned property.
  3. 3 How costs of the application and sale should be apportioned.

Ratio Decidendi

The court held that the applicant is entitled to terminate the joint ownership of the property under the actio communi dividundo. The respondent's consent is not required for the termination and sale. The court exercised its discretion to order the sale of the property, setting out a procedure for appointment of estate agents, a minimum sale price, and mechanisms to ensure compliance, including authorising the Sheriff to act if the respondent fails to cooperate. Costs of the application and sale are to be apportioned equally, with the respondent bearing the taxed costs of the application, payable from his share of the sale proceeds if necessary.

Court Disposition

Application granted. Joint ownership terminated and property to be sold under court-directed procedure.

Orders

  • It is declared that the applicant is entitled to terminate the joint ownership of the immovable property.
  • The property shall be marketed by three estate agents appointed by agreement, or failing agreement, by the Estate Agency Affairs Board.