LLB270 Study Guide - Final Guide: Inherent Jurisdiction, Adverse Possession
CO-OWNERSHIP
POSSESSION:
Each owner, in the absence of any agreement, has the right to possess the entirety of
the property – Thrift v Thrift (1975)
Co-owners do not have a right to exclude one another
Must have UNITY OF POSSESSION
In the case of exclusion from the property under the doctrine of OUSTED occupation
rent may be due (co-owner leaving to escape domestic violence – ouster – Dennis v
McDonald)
COSTS:
General costs of maintenance (such as pest control or insurance) do not qualify –
Foregard v Shanahan
Equitable right to be compensated for improvements or repairs
Improvements – co-owner can only claim for their expenses, or that increase in the
property value, whichever is LESS – Boulter v Boulter
Mortgage repayments are compensable – Re Gorman
Payments of water and council rates are also compensable – Foregard v Shanahan
OCCUPATION RENT:
FOUR CIRCUMSTANCES were occupation rent is REQUIRED:
oCo-owner ousts another – gives rise to an occupation rent – Dennis v McDonald
oAgreement to pay occupation rent – Leigh v Dickeson
oOccupying co-owner is claiming an allowance for improvements – Teasdale v
Sanderson (1864)
oCo-owners have been in a domestic relationship, and the relationship having broken
down, it is no longer reasonable for them to live in the same premises – Callow v
Rupchev [2009]
TERMINATION:
Can end because of:
oAction of the parties
Where right to survival is completed, the ownership becomes possessed by one
individual
Ends where co-owners jointly transfer their interests to a third party
May also terminate by acts of adverse possession by one co-owner against
another – Limitation Act s 38(5)
Where each party becomes the sole proprietor of their fraction of the property
oOrder of sale or partition by the Court
Land:
One or more co-owners of the property may apply to the court to have a
trustee appointed to sell or partition the property
Court has discretion regarding what sale or partition
Sale is the primary remedy – Section 66G
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Document Summary
Each owner, in the absence of any agreement, has the right to possess the entirety of the property thrift v thrift (1975) Co-owners do not have a right to exclude one another. In the case of exclusion from the property under the doctrine of ousted occupation rent may be due (co-owner leaving to escape domestic violence ouster dennis v. General costs of maintenance (such as pest control or insurance) do not qualify . Equitable right to be compensated for improvements or repairs. Improvements co-owner can only claim for their expenses, or that increase in the property value, whichever is less boulter v boulter. Mortgage repayments are compensable re gorman. Payments of water and council rates are also compensable foregard v shanahan. Sanderson (1864: co-owners have been in a domestic relationship, and the relationship having broken down, it is no longer reasonable for them to live in the same premises callow v. Can end because of: action of the parties.
