A Property24 reader asks:
I am a 43 year old woman, who in 2007, purchased property with my ‘boyfriend’ who after some time claimed that we purchased it as ‘friends’. We each own 50% of the property.
When we moved into the property, we decided that we would have our own rooms and rent out the remaining rooms. I have two kids with him and one from a previous relationship. However, after all these years he claims that because he spent more money than me on the property for maintenance and repairs, he has the right to enter my space whenever it suits him.
The situation is becoming difficult. I would like to know if what he’s doing is right, or do I have any rights? Also, how can I get out, as he will want to keep the property if I leave and I earn a small salary, so will battle to manage on my own with three kids?
Denoon Sampson, from DenoonSampson Ndlovu Inc. Conveyancing Attorneys, responds:
The rights between co-owners are dependent on whether or not there was any prior agreement between them.
As is mentioned, they decided or agreed that they would each have their own rooms and they would rent out the remaining rooms. As to whether or not the one co-owner has the right to enter the space of the other - depends on what was agreed.
If there was no agreement which governs one’s rights to a portion of the property, one has to refer to the common law as it applies to co-ownership. Unless otherwise stipulated, co-ownership does not automatically entitle either party to have exclusive use to any physical part of the property, bounded by any boundary or physical barrier.
For instance if two people decided to buy a motor vehicle together, without any particular agreement between them, one cannot simply lay claim to an 'exclusive' part of the property. So nobody would say: “I'm going to exclusively use only the engine and the front seats", whilst the other co-owner would be restricted to the back seats and the boot. The whole thing is shared without boundaries or physical divisions, in undivided shares.
This principle will also apply to their joint ownership of property.
So if there was an agreement that each party would have their own rooms, that agreement should be implemented and enforced; meaning that the other partner is not entitled to enter the space of the former partner, just because he paid more money towards the property.
One could apply to court to have the agreement that their rights are limited and restricted to certain rooms, enforced. The courts do accept that an agreement need not always be in writing. For instance, an agreement can be proved by implication or by past conduct.
What is clear, is that unless otherwise agreed, a co-ownership agreement does not give either co-owner the right to exclusive use of part of the property. Secondly, the fact that more money might have been paid towards the property does not in any way provide extra rights of access or occupation thereof, because co-ownership does not provide fixed boundaries or physical divisions in the property. Also, further payments do not increase one's ones undivided share in the property.
A previous court case has held that in the absence of any agreement to the contrary, any co-owner can demand partition (subdivision with boundaries) of the common property at any time. If partition is not possible or would bring about some complications, the parties can apply to court for an order for the sale of the property and the consequent division of the proceeds between the co-owners half and half. Also, one party, can purchase the share of the other, so that he becomes the 100% owner of the property.
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