co-ownership Flashcards
Def of co-ownership
the position where two or more
persons own a thing at the same time in undivided shares. Put differently, each co-owner
has the right to a share in the entire thing, but the various shares need not be equal.
Numerous ways in which co-ownership may be formed
as the result of a contract, bequest, marriage in a community of property or a universal partnership between unmarried cohabitants,101 partnership or by mixing (commixtio).
Describe a bound co-ownership
the co-owners cannot encumber or alienate their part of the co-owned
property for as long as the underlying relationship endures
the co-ownership cannot be terminated unilaterally.
There is no mention of an undivided co-ownership share for the purposes of bound co-ownership because the value of such a share will only become relevant when the underlyingrelationship is dissolved
describe free co-ownership
if the co-ownership is
the only legal relationship between the parties,
Consequences of free co-ownership
(a) the co-owners may encumber or
alienate their undivided co-ownership share
(b) the relationship may be terminated
unilaterally,
(c) the content and how co-ownership operates is not dependent on the underlying relationship.
what can be done ito fee co-ownership that co-owners aren’t necessarily compelled to do?
free co-owners may regulate their rights and duties in respect of the joint property by
agreement.
If such an agreement is concluded the dividing line between co-ownership per se and a partnership or other association is not always easy to draw.
What does ‘undivided co-ownership share’ (communion pro indivisio) mean?
The commonly-held property may not be divided for as long as the co-ownership endures, and co-owner can encumber or alienate the property without the consent of the other co-owners.
What is the compulsory step that must be taken when considering undivided co-ownership shares?
The undivided co-ownership share in the co-owned property must be distinguished from the property itself.
A failure to do this conceptually will
result in confusion about what may be done in a particular circumstance.
The undivided co-ownership share reflects each co-owner’s interest in the co-owned property.
why are co-owners strongly advised to reduce their contract to writing?
This will ensure that there is clarity about what they agreed on and should assist with any disputes that may arise in future or if they need to dissolve the co-ownership. Such an
agreement can regulate the allocation of particular portions of the property to each co-owner depending on the nature of the property and whether it is divisible.
What are the rights granted to the co-owner ito undivided shares
Entitles a co-owner to reasonable use of the co-owned property in proportion to his/her co-ownership share.
However, this does not mean that the property itself is divided into proportionate shares and that each co-owner is restricted to the use of his/her divided part of the property
What should happen if the property is not physically divisible?
The agreement may organise the use of the property with reference to another method – like days.
Effect of agreement formed from property that’s not divisible?
The content of such an agreement only creates a personal right for each of the co-owners and is binding on them only inter partes
Describe the disposal of co-owned property
While co-owners may freely dispose of their undivided co-ownership share, the same
does not hold true for the co-owned property. Flowing from the agreement – formal or
informal – that they enter into with each other, they must decide how and for what
purpose the co-owned property must be used.
whats the difference between the reasonable and unreasonable use of property?
The reasonable use of the property is more
often than not determined by the purpose for which the property was constructed.
Unreasonable use includes a change in the use and enjoyment of the co-owned property by
one co-owner, unilaterally granting use rights to a third party without the consent of
the other co-owners, or exercising ownership entitlements to the prejudice of the other
co-owners
