Compulsory partition of immovable property under section 29 of Cap. 224

Three siblings inherit an immovable property and hold it in undivided shares. One wishes to make use of his share and seeks partition, while the others disagree. Can their refusal force him to remain indefinitely trapped in a co-ownership arrangement that he no longer wishes to maintain?

Section 29 of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, provides an effective solution.

Subject to the requirements of the Law, it empowers the director of the Department of Lands and Surveys to proceed with the partition of immovable property held in undivided shares and to register the resulting plots in the names of the persons entitled to them, without necessarily requiring the unanimous consent of all co-owners.

From the application to the partition plan

The general principle under section 29(1) is that an application may be made by any co-owner. However, in cases falling within section 29(9), which are subject to section 27(1)(a) and concern immovable property in development areas where the relevant permits are required, an application may be submitted by one or more co-owners who are the registered owners of at least 25 per cent of the immovable property.

Accordingly, this percentage may be reached by aggregating the shares of more than one co-owner.

The procedure begins with the external boundary demarcation of the property, followed by the preparation of a preliminary survey plan by a licensed surveyor.

The plan must comply with the applicable development plan, planning legislation, road alignment and access requirements, as well as the technical specifications of the Land Registry.

The plan is then examined and adjusted to meet the requirements of the competent licensing authority, currently the relevant local government organisation (EOA), for the purpose of obtaining the planning division permit and the relevant partition permit, as provided by section 29(9).

In practice, the Land Registry may allow the co-owners a period of two months to submit proposed partition alternatives.

It is not only the area that matters, but the value

The allocation is not made mechanically on the basis of square metres. Two plots of equal area may have different values because of their location, frontage, access or development potential.

Therefore, once the final plans have been completed, the new plots are valued so that the distribution corresponds, as closely as possible, to the value of each co-owner’s undivided share.

Where this is not practically possible, section 29(4) allows the director to equalise the difference through monetary compensation. A co-owner or co-owners receiving plots of greater value than their respective entitlement may be required to compensate those receiving property of lesser value or no plot at all.

The compensation is determined by reference to the respective shares and the value of the plots.

Payment of such compensation is secured by the law. Until payment is made, the liable co-owner cannot enter into any transaction concerning the plot allotted to them without the consent of the person entitled to the compensation.

If payment is not made within 42 days from the date of the final order, the director may put the plot up for sale by auction and pay the compensation out of the proceeds of sale.

And who gets which plot?

The director must, as far as possible, take into account the wishes of the co-owners. Where, however, there is no agreement as to the particular plot to be allotted to each of them, section 29(3) provides that the matter is ultimately determined by the drawing of lots before the director.

Of particular importance is the Supreme Court judgment in Clerides v. Vassiliades (1978) 1 CLR 180. The court clarified that an application for partition sets the procedure under section 29 in motion without requiring the agreement or consent of the other co-owners.

Where there is agreement on the partition, the matter proceeds accordingly. Where there is no agreement, or where disagreement remains as to which plot is to be allotted to each co-owner, the matter is ultimately resolved by drawing lots. The director does not have discretion to determine the allocation they consider fairer.

Section 29 provides an important means of bringing a dysfunctional co-ownership arrangement to an end. It does not override the rights of co-owners or planning and technical requirements.

On the contrary, through surveying, licensing, valuation and, where necessary, compensation or drawing of lots, it seeks to achieve a fair, balanced and workable solution.

The essential point is that the absence of unanimity should not result in the permanent immobilisation of property. Where partition is legally and technically feasible, the law provides a mechanism through which ownership in undivided shares can be transformed into clearly defined, separate and usable immovable property.