Can I Sell My Portion of a Joint-Name Property?
Joint name property means ‘joint ownership’ or ‘co-proprietorship’ of a property. It simply refers to two people (or more) who each have a share of the same property. This could include cohabiting couples or friends or family members who own a property together.
Whether you are a joint owner with your partner, a family member, or a friend, relationships sometimes break down or circumstances change, which can lead to one joint owner wanting to sell the shared property.
If you would like to sell the property but your partner or the co-owner does not, or vice versa, then one party can force a sale through a court order unless there are some specified circumstances that could prevent it.
What is the legal procedure?
If the partners or co-owners cannot agree on the sale of the property, either party is at liberty to file an application to court for termination of the ‘co-ownership’ or ‘co-proprietorship’ in the property under Section 145 of the of the National Land Code [“S.145 NLC”].
Section 145 of the of the National Land Code reads:
“Section 145: Power of Court to facilitate termination of co-proprietorship.
(1) Where, in the case of any land vested in co-proprietors,
(a) Any of the co-proprietors will neither join in nor consent to the making of an application for partition under this Chapter, or
(b) By reason of the operation of paragraph (f) of sub-section (1) of Section 136 (as applied by Section 141), the partition of the land between all of the co-prophetors is incapable of being approved under this Chapter.
The Court, subject to and in accordance with the provisions of any law for the time being in force relating to civil procedure, may, on the application of any of the co-proprietors, make such order as it may think just for the purpose of enabling the co-proprietorship to be terminated.
(2) Without prejudice to the generality of the power conferred by subsection (1), the Court may, on any application under that subsection order:
(a) that, subject to the making between the co-proprietors of such payments as the Court may consider equitable having regard to the comparative values of the individual portions thereby proposed, any application for partition made by one or more of the co-proprietors in the terms specified in the order shall be deemed for the purposes of this Chapter to have been made by them all;
(b) that the undivided share of any of the co-proprietors be transferred on the terms specified in the order to the other co-proprietors, or to any of them;or
(c) that the land be sold. (Emphasis added.)”
Pursuant to the provisions under S.145 NLC, the Court has the power to grant reliefs consequent to a termination of ‘co-proprietorship’, which includes, but is not limited to, an order for sale of the property.
This has the effect of compelling either the co-owner to buy over the share in the property from the other co-owner(s) or to force the property to be sold by way of a sales and purchase agreement (if there is any potential buyer with an offer) or through a public auction at the market price.
In the case of Ong Chin Hai & Anor v. Ong Hoo See & Ors [2022] 5 MLJ 690, for example, the Court of Appeal affirmed the decision of the High Court in terminating the co-proprietorship of property among the brothers who held equal shares in the property. The property was ordered to be sold by public auction at the market price.
Can I ask my co-owner to pay the expenses from the sale of property?
The Court also has the discretion under S. 145 NLC read with Section 25 Courts of Judicature Act 1965 to make further orders to facilitate the process of the sale of the property by giving directions about the appointment of a valuer or auctioneer, the manner of distribution of the proceeds of the sale of the property, and to direct either party(s) be responsible for paying the expenses incurred from the sale, such as legal fees, stamp duty, and so forth.
It is important to know your rights and liabilities in sharing a property with a partner, family member or friend! Please feel free to contact us for more comprehensive information.
If you have any questions or require any additional information, please contact our lawyer that you usually deal with.