Co-ownership or joint ownership occurs where two or more persons own the same property at the same time in undivided shares. A good example of co-ownership is where a husband and a wife (whether under a customary union or registered marriage) own the same stand, in other words both their names appear on the title deed to the property.
One of the most important elements of co-ownership is that the property is jointly owned in undivided shares. In the example above neither the husband nor the wife is the owner of the whole stand nor are they each owners of a particular physical piece of the stand. The husband or wife alone cannot sell or donate the whole stand without the consent of the other. Neither of the two can also mortgage the property without the consent of the other. Each co-owner can use the property in proportion to his/her undivided share. The same applies to the sharing of profits and maintenance costs.
With regard to each person’s undivided share, each is free to do as they wish. In the example above the wife can sell her undivided share in the stand to a third party with the undesirable result the husband becomes a co-owner with a complete stranger. Similarly, one person’s undivided share can be attached by the sheriff and sold in execution of a judgment debt resulting in the other spouse being a co-owner with a complete stranger. However, the whole property cannot be attached and sold in execution in respect of a debt of one co-owner unless the other co-owner(s) consent (see Gonyora v Zenith Distributors (Pvt) Ltd and Ors 2004(1)195(H)).
Co-owners can agree to terminate the co-ownership relationship and subdivide the land in which case there will be partition transfers. However, this is subject to the land being possible to subdivide. Parties can also agree to sell the jointly owned property and share the proceeds according to their respective shares. Where the co-owners cannot agree, a co-owner can approach the court. The court has a wide discretion; it can order a subdivision or if this is not possible the property may be awarded to one co-owner subject to payment of compensation to the other co-owners. The court may also order that the property be sold and the net proceeds shared among the co-owners in their respective shares. Note that the situation differs if the joint owners are husband and wife and they divorce (see article on division of assets upon divorce).
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