D.S.L.A v D.S.P.J and Another (36581/2020) [2023] ZAGPJHC 182 (21 February 2023)

D.S.L.A v D.S.P.J and Another (36581/2020) [2023] ZAGPJHC 182 (21 February 2023)

The court found that the applicant and first respondent are entitled to terminate their co-ownership of the property and that the property should be sold on the open market. It is inequitable for the first respondent to enjoy sole occupation and benefit of the property without bearing the associated costs. Both parties are responsible for the costs relating to the property during the initial three months of marketing, after which the flats must be rented out if unsold. The net proceeds from the sale are to be held in trust pending the outcome of the divorce action. The court ordered that both parties cooperate in the sale and rental process, and that arrears and ongoing costs be shared...

Citation
[2023] ZAGPJHC 182
Parties
Applicant: D.S.L.A; Respondent: D.S.P.J; Respondent: First National Bank
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
21 February 2023
Case Number
36581/2020
Procedural Posture
Civil Application / Final Determination
Outcome
Application granted in part; co-ownership terminated; property to be sold; costs and proceeds to be shared as ordered.
Judges
A Makume
Legal Topics
Actio Communi Dividundo, Co Ownership Termination, Joint Property Sale, Division of Proceeds
Land and Property Civil Procedure Actio Communi Dividundo Co Ownership Termination Joint Property Sale Division of Proceeds

Case Brief

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Parties

D.S.L.A

Applicant

D.S.P.J

Respondent

First National Bank

Respondent

Procedural Posture

Civil Application / Final Determination

Legal Issues

  1. 1 Whether the co-ownership of the property between the applicant and first respondent should be terminated.
  2. 2 Whether the property should be sold and the proceeds divided.
  3. 3 Whether the first respondent should bear the costs of occupation and related expenses while residing on the property.

Ratio Decidendi

The court found that the applicant and first respondent are entitled to terminate their co-ownership of the property and that the property should be sold on the open market. It is inequitable for the first respondent to enjoy sole occupation and benefit of the property without bearing the associated costs. Both parties are responsible for the costs relating to the property during the initial three months of marketing, after which the flats must be rented out if unsold. The net proceeds from the sale are to be held in trust pending the outcome of the divorce action. The court ordered that both parties cooperate in the sale and rental process, and that arrears and ongoing costs be shared...

Court Disposition

Application granted in part; co-ownership terminated; property to be sold; costs and proceeds to be shared as ordered.

Orders

  • The co-ownership of the applicant and first respondent in respect of the property is terminated.
  • The property is to be sold on the open market for not less than R3,200,000.00, with advertising visible for three months.