QLD		WA	19
ACT	52	NT	84
VIC		TAS
NSW	58	UK
SA	48	NZ

 

13.1 People who own land together either as joint tenants or tenants in common and who wish to terminate the co-ownership may be able to do so by agreeing to subdivide the land, or by commencing an action for “partition” requesting the court to subdivide the land.

13.2 Some jurisdictions have provisions in their administration and probate legislation empowering the court to order partition as a means of ending a joint tenancy or a tenancy in common.

13.3 Section 58 of the Wills, Probate and Administration Act 1898 (NSW) provides:

Court may order partition in a summary way

(1) In any case wherein upon such inquiry the Court is satisfied that a partition of such real estate or any part thereof will be advantageous to the parties interested therein, the Court may appoint one or more arbitrators to effect such partition.

(2) The report and final award of the arbitrators setting forth particulars of the land allotted to each party interested shall, when signed by them and confirmed by the order of the Court, and when also registered in the office of the Registrar-General, be effectual without the necessity of any further conveyance to vest in each allottee the land so allotted to the allottee, and an office copy of such award so signed, confirmed, and registered as aforesaid, shall for all purposes be equivalent to an indenture of conveyance to each allottee of the lands allotted to the allottee as aforesaid.

(3) In the case of land subject to the provisions of the Real Property Act 1900, the Registrar-General, on being served with an office copy of any such award so signed and confirmed, shall create a folio of the Register kept under that Act for the land so allotted to each allottee.

(4) If such allotment be made subject to the charge of any money payable to any other party interested for equalising the partition, such charge shall take effect according to the terms and conditions in regard to time and mode of payment and otherwise which shall be expressed in such award without the necessity of any further instrument being made or executed.

(5) In the case of land subject to the provisions of the Real Property Act 1900, the Registrar-General, when creating under subsection (3) a folio of the Register kept under that Act as a consequence of an allotment made under subsection (2), shall make in the folio such recording as the Registrar-General considers appropriate with respect to any charge referred to in subsection (4) that relates to the allotment and that is unsatisfied.

13.4 The National Committee considered whether the model legislation should include a provision to the effect of section 58 of the Wills, Probate and Administration Act 1898 (NSW).

3. THE NATIONAL COMMITTEE’S PRELIMINARY VIEW

13.5 The National Committee noted that a provision to the effect of section 58 of the Wills, Probate and Administration Act 1898 (NSW) does not exist in the Queensland administration and probate legislation. However, in Queensland, there are provisions in the Property Law Act 1974 (Qld) dealing with statutory trusts for sale or partition which have the same effect and appear to be working well.¹

13.6 The National Committee has adopted a policy that statutory provisions should be placed in the principal legislation covering the subject matter of the provisions.

Proposal 69

The model legislation should not include a provision to the effect of section 58 of the Wills, Probate and Administration Act 1898 (NSW). Any jurisdiction that wishes to enact such a provision should do so in its real property legislation.