Common Ownership

Nature of Co-Ownership Co-ownership arises where more than one person owns the same estate, interest or title in land. Together, the co-owners own the estate in land collectively. There are two principal forms of co-ownership, namely joint tenancy and tenancy in common. In this context, the use of the word tenancy does not imply that the owners hold as tenants or lessees. Freehold co-owners are described as joint tenants or tenants in common. The most significant practical distinction between them is that the so-called right of survivorship attaches to a joint tenancy. This means that on death, that the other joint owners automatically acquire ownership of the deceased’s joint owner’s share. In contrast, on the death of a tenant in common, his share in the property passes to the persons entitled to his assets on death (described in his or under the rules of intestacy). Where two joint tenants die simultaneously, for example in an accident, then they are deemed to have held their shares as tenants in common in equal shares immediately prior to death.… Read the rest

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Nature of Partition Co-owners may agree to divide the property between them by way of partition.  Partition involves a physical division/apportionment of the property, between the co-owners so that each is the full owner of a part only.  Joint tenants and tenants in common may partition by agreement. The principle applies to any estate whether a freehold estate, a long or a short lease.  A lease may require the consent of the landlord, which may preclude partition. A partition may extend to easements and so-called incorporeal hereditaments.  Dividing the dominant tenement will generally divide the benefit of easements, provided that they attached to the whole.  Certain types of easements and incorporeal hereditaments cannot be divided. Certain profits, fishing and riparian rights may not be divided, when held in common.  Parties may circumvent this principle, by agreeing to divide the shares or the periods of occupation between them. Upon a partition of land, owners may wish to reserve mutual easements over access ways and services,  so that each piece of land is sustainable by itself. … Read the rest

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Partition or Sale Historically, the courts could not refuse partition or sale.  The Partition Acts conferred jurisdiction on court to make  an order of partition, or sale instead of partition.  Courts now take different views as to whether  there is a jurisdiction or discretion to refuse both.  Some courts take the view that the courts should order either partition or sale.  Partition is  available, only if it is shown to be a feasible alternative to sales. If third-party consent is required to the partition, the court may adjourn proceedings to see if consent will be forthcoming.  Because of the principle that a partition may not be ordered where it would prejudice a third party’s interest, the  requirement for a third-party consent may be a bar to partition, where his consent is not available.  The court may refuse to order partition where it would be futile.  This will be so if a third-party can circumvent or defeat the order. … Read the rest

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Multi-Unit Developments From the mid-1990s onwards, there was a rapid increase in the number of multi-unit developments in Ireland.  The perceived housing shortage led planning authorities to grant planning permissions for apartments in areas, outside of city and town centres.  The rapid pace of development placed pressure on the infrastructure and capacity of the local authorities.  In this context, many local authorities granted planning permissions for additional housing developments, in which certain parts of the common areas, typically roads, footpaths and amenity areas were not to be taken over or vested in the Council, but were instead to be privately managed and maintained by the residents through a management company and service charge. Pressure on infrastructure was also reflected in a lack of capacity for foul and surface water drainage.  Planning authorities were prepared to permit development with private effluent treatment, where there was insufficient capacity in the public sewage infrastructure. … Read the rest

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Application The Multi-unit Developments Act provides for mandatory rights and obligations in relation to residential multi-unit developments.  It applies to residential apartment blocks, where the structural parts and the internal and external common areas are, of necessity, managed in common. It applies to housing developments, with private facilities such as open spaces, roads, lighting or other facilities. It applies to mixed commercial and residential developments and with some residential element. See the sections on the legal structures used in relation to multi-unit developments.  The Multi-unit Development Act applies both to new, post (1st April  2011) developments and to pre-existing developments. Differing requirements apply to new schemes and to existing schemes. It overrules existing residential management schemes to a significant extent. The Multi-unit Developments Act applies to a “multi-unit” development.  This is a development on which there are buildings comprising units, where amenities and facilities are to be shared and where the development contains at least five residential units. … Read the rest

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