Co-ownership

Co-owned property disputes that require a structured resolution.

Joint tenancy severance, partition or sale applications, and accounting disputes for siblings, business partners and separating couples in Queensland.

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Reviewed by Blake Fraser, Principal Lawyer, Fraser Lawyers Last updated 3 May 2026

Buying property with another person is easy. Leaving that arrangement can be considerably less so.

Co-ownership disputes arise between people who once agreed on everything: siblings who inherited together, friends who bought as an investment, business partners who combined capital, de facto couples whose relationship has ended. The property outlasts the relationship, and the legal structure that held it together becomes the problem.

Queensland law provides mechanisms for resolving co-ownership disputes that cannot be negotiated. The Property Law Act 2023 (Qld) allows a co-owner to apply to the court for an order for the sale or physical division of co-owned land where the co-owners cannot agree. That power exists regardless of whether one co-owner wants to sell and the other does not.

For separating couples whose co-ownership arises from a de facto relationship, the Family Law Act 1975 (Cth) applies and provides a different pathway. The considerations are not identical. Getting the framework right at the outset determines what orders are available and in which court.

Scope of work

What we help with

Fraser Lawyers acts on co-ownership matters, including:

Matter: What it usually involves
Joint tenancy advice: Rights of survivorship, how title is held, and implications for estate planning
Tenancy in common advice: Proportionate shares, inheritance of a share, and co-owner obligations
Severance of joint tenancy: Converting a joint tenancy to tenancy in common to defeat the right of survivorship
Partition or sale applications: Applications for sale or physical division of co-owned land under the Property Law Act 2023 (Qld) s 33 where co-owners cannot agree
Accounting between co-owners: Claims for mortgage contributions, improvement costs, occupation rent and rental income distribution
Co-ownership disputes between siblings: Inherited property where the co-owners disagree on sale, retention or use
Business partner co-ownership disputes: Investment property held jointly where the business relationship has ended or broken down
De facto couple co-ownership: Where the property issue falls outside the Family Law Act 1975 (Cth) or requires separate co-ownership proceedings
Constructive trust and resulting trust claims: Where a contribution to property is not reflected in the registered title
Co-owner buyout negotiations: Structured buyout of one co-owner's share, including valuation and transfer documentation

The legal structure of co-ownership shapes the available remedies. A joint tenant and a tenant in common are in different positions: the joint tenant’s share does not pass under a will; the tenant in common’s does. That distinction is not academic when a co-owner dies, and it is not irrelevant when a co-owner wants to exit the arrangement.

Most co-ownership disputes can be resolved without court proceedings if the parties engage at an early stage with a clear understanding of the legal framework. When they cannot, the court has broad power to impose a resolution. That power exists precisely because co-ownership disputes, if left unresolved, immobilise an asset that neither party can freely deal with.

Process

How co-ownership disputes are resolved.

Any co-owner of land in Queensland can seek the court’s intervention to resolve a co-ownership dispute. The threshold is low; the question is not whether the applicant has a strong case for why the property should be retained, but simply whether co-ownership has broken down to the point where a resolution is required.

Joint tenancy. A joint tenancy is characterised by the four unities: unity of possession, interest, title and time. Each joint tenant holds an undivided share of the whole. The defining feature is the right of survivorship: on the death of a joint tenant, the surviving co-owner automatically acquires the whole interest. The deceased’s share does not pass under their will and does not form part of their estate.

Tenancy in common. A tenancy in common does not carry a right of survivorship. Each co-owner holds a defined proportionate share (which may be equal or unequal) that passes under their will or on intestacy. A tenant in common can deal with their share independently, including mortgaging it or leaving it to a chosen beneficiary.

Severance. A joint tenancy can be severed, converting it into a tenancy in common. Severance can be effected unilaterally by one joint tenant and does not require the other’s consent. Methods include a unilateral registered transfer by the joint tenant of their own interest under s 59 of the Land Title Act 1994 (Qld) (the registrar can register the transfer only once the owner has given, or made a reasonable attempt to give, each other joint tenant written notice or a copy of the instrument); mutual agreement; or a course of dealing showing the co-owners have treated their interests as tenancies in common. The right of survivorship is destroyed once the severance takes effect on registration.

Sale or division under statute. Where co-owners cannot agree on the future of the property, any co-owner may apply to the court under s 33 of the Property Law Act 2023 (Qld) for an order for the sale of the property and division of the proceeds, for the physical division of the property, or a combination of the two. The court may make any order the case requires to ensure a just and fair sale or division (s 34), and must prefer a sale unless a physical division would be more just and fair, having regard to matters such as the use being made of the property, whether it can practically be divided, and any special attachment to it (s 35). The court can also adjust the accounting between co-owners for contributions to mortgage, maintenance and improvements (s 40).

Partition and sale

When one co-owner wants to sell and the other does not.

The most common co-ownership dispute has this shape: one co-owner wants to sell, the other does not. The party who wants to retain the property cannot buy out the other. The party who wants to sell cannot force a sale without court assistance. The property sits idle and the relationship deteriorates.

The Property Law Act 2023 (Qld) provides the answer. Under s 33 a co-owner can apply to the court for an order for sale and division of the proceeds or, where the land can practically be divided, for physical division. One co-owner’s wish to retain the property does not prevent the application; it is often the reason for it. But the outcome is a matter for the court’s discretion: under ss 34 and 35 the court makes the order that is just and fair, preferring a sale unless a division would be more just and fair in light of the use of the property, whether it can be divided, and any special attachment to it.

The court retains a broad discretion over the terms of the order. It can impose conditions, direct how the proceeds are divided, and require an accounting between the co-owners before distribution. A co-owner who has paid more than their proportionate share of the mortgage or maintenance costs can raise those contributions in the accounting under s 40, though the rules governing what is recoverable are more nuanced than many co-owners expect.

Physical partition is an alternative to sale where the land is large enough to be divided into two separate lots of comparable value. In practice, partition is rarely available for residential property; it is more commonly ordered for rural or larger commercial landholdings. For most residential co-ownership disputes, the order will be a sale, not a partition.

Accounting

What co-owners can claim from each other.

Accounting between co-owners is one of the more technically demanding aspects of co-ownership law, and one of the most practically significant. The rules determine whether one co-owner can recover from the other for mortgage payments, improvements, maintenance costs and the benefit of exclusive occupation.

The accounting between co-owners is now governed by s 40 of the Property Law Act 2023 (Qld), which applies despite any other Act or law. A co-owner who has received more than their proportionate share of rent or other money can be required to account. Occupation rent is treated more narrowly: a court can require a co-owner who occupied the land to pay an amount equivalent to rent to a co-owner who did not, but only where the occupying co-owner seeks compensation or an accounting for money they spent on the property, or the non-occupying co-owner was excluded, or the non-occupying co-owner suffered a detriment because sharing occupation was not practicable. Sole occupation by one co-owner, without more, does not automatically attract occupation rent.

The issue of shared mortgage payments also requires care. A co-owner who has paid more than their proportionate share of a mortgage does not automatically have a claim against the other for reimbursement. The right to contribution depends on the terms of the original agreement between the parties and the circumstances in which the payments were made.

For separating de facto couples, the analysis is different. The Family Law Act 1975 (Cth) applies, and the court can make a broader assessment of contributions and future needs. Co-owners in that position should consider whether to proceed under the Family Law Act or under the co-ownership provisions of the Property Law Act 2023 (Qld). The two pathways are not identical in what they can achieve. Further information is available at property settlement.

Time limits

Deadlines and risks.

Co-ownership disputes do not have a single governing limitation period, but delay creates compounding problems.

For accounting claims between co-owners, the six-year limitation period under the Limitation of Actions Act 1974 (Qld) applies to money claims. A co-owner who has been paying more than their share for years without making a formal demand may find that the oldest payments are outside the limitation window by the time proceedings are commenced.

Severance of joint tenancy is subject to no formal limitation period, but its significance is greatest when a co-owner’s health or circumstances change. A joint tenant who wants to ensure their share passes to a chosen beneficiary rather than to the surviving co-owner needs to sever before death. A severance after death is not possible.

For separating de facto couples, the Family Law Act 1975 (Cth) imposes a two-year time limit for property settlement applications from the date of separation. A co-ownership dispute that falls within the family law framework must account for that deadline. Proceeding under the wrong statute after the family law limitation period has expired may leave a party with a less favourable remedy.

Where a co-owner is dissipating, mortgaging or otherwise dealing with the property in a way that prejudices the other co-owner, urgent injunctive relief may be available. The urgency is real; once a dealing is registered on the Torrens title, it may be indefeasible.

What we do

How Fraser Lawyers acts in these matters.

Fraser Lawyers advises co-owners on the legal framework that applies to their situation, the options available for resolution, and the most direct path to achieving it.

For co-owners seeking to exit an arrangement, the firm assesses whether a negotiated buyout, a physical division, or an application for sale under s 33 of the Property Law Act 2023 (Qld) is the appropriate step. For co-owners with contribution claims, the firm analyses what is recoverable in an accounting and prepares the claim with the supporting financial evidence.

Where a co-owner needs to sever a joint tenancy quickly, the firm advises on the method, prepares the severance instrument, and lodges it with the Titles Office. Where de facto property issues are involved, the firm identifies whether the Family Law Act or the co-ownership framework better serves the client’s position, and refers or acts accordingly.

Blake Fraser acts personally on all co-ownership matters.

Practical

Documents to bring.

Title search or Certificate of Title Confirms how title is held (joint tenancy or tenancy in common) and the registered proprietors
Contract for sale or transfer document The original purchase documents, if available
Mortgage documents Loan agreements, statements showing payments made
Records of financial contributions Bank statements, receipts, invoices showing mortgage, maintenance and improvement payments
Any written co-ownership agreement A deed of trust, co-ownership agreement or any written arrangement between the co-owners
Rental income records If the property has been tenanted; lease agreements and rental statements
Valuation or market appraisal A current or recent assessment of the property's market value
Correspondence with the other co-owner Letters, emails or text messages about the property or the dispute
Will or probate documents If the co-ownership arose from an inheritance
Separation agreement or family law orders If the co-ownership dispute arises from a relationship breakdown

Pathway

The likely path.

Step 1: Legal advice and framework analysis.

Fraser Lawyers reviews the title, the purchase documents and any agreement between the co-owners to identify whether the property is held as joint tenants or tenants in common, what each co-owner’s proportionate interest is, and what claims each may have in an accounting. This step also determines whether the Family Law Act applies and whether that pathway is more appropriate.

Step 2: Negotiation and offer.

Most co-ownership disputes can be resolved by a structured buyout or an agreed sale if the parties approach the negotiation with clear information about the legal framework. The firm assists in preparing a buyout offer or sale proposal that reflects the legal position and accounts for contribution claims. A negotiated resolution avoids the cost and delay of court proceedings.

Step 3: Severance (if required).

Where a co-owner holds as a joint tenant and needs to protect their interest pending resolution, the firm advises on severance under s 59 of the Land Title Act 1994 (Qld), prepares the transfer, attends to the required notice to each other joint tenant, and lodges it for registration. Severance converts the joint tenancy to a tenancy in common and defeats the right of survivorship once it is registered.

Step 4: Sale or division application.

Where negotiation fails, the firm prepares a court application under s 33 of the Property Law Act 2023 (Qld) for an order for the sale of the property and division of the proceeds, or for physical division of the land. The application gives each holder of a security interest over the property a copy within 30 days, as s 33 requires, and includes the accounting claim where relevant. The court can make the orders it considers just and fair at the one hearing, including how the sale is conducted and how the proceeds are distributed.

Step 5: Settlement and transfer.

Where the resolution involves a buyout, the firm prepares the transfer documentation, manages settlement, and lodges the transfer for registration. Where the resolution involves a court-ordered sale, the firm liaises with the appointed trustee and ensures the accounting is finalised and the proceeds are distributed correctly.

Frequently asked

Questions we hear often.

Plain-English answers to the questions clients tend to ask. If your question is not here, call us.

Get in touch

What is the difference between joint tenancy and tenancy in common?

A joint tenancy carries a right of survivorship: if one joint tenant dies, the surviving co-owner automatically acquires the whole property. The deceased’s share does not pass under their will. A tenancy in common does not carry survivorship. Each co-owner holds a proportionate share that can be left to a chosen beneficiary or inherited on intestacy. The distinction is significant for estate planning and for what happens when a co-owner dies. If your title document says “A and B as joint tenants”, the survivorship rule applies unless the joint tenancy is severed before death.

Can I force a sale if my co-owner refuses to sell?

Often, yes, but it is a matter for the court’s discretion rather than an automatic right. Under s 33 of the Property Law Act 2023 (Qld), any co-owner can apply to the court for an order for sale and division of the proceeds, or for physical division of the land. The court makes whatever order is just and fair (s 34) and must prefer a sale unless a physical division would be more just and fair (s 35). A co-owner’s wish to retain the property does not prevent an application, but the court weighs the circumstances, including the use being made of the property, whether it can be divided, any special attachment to it, and what accounting adjustments should be made between the co-owners before the proceeds are distributed.

I have been paying the mortgage on my own for years. Can I recover half from my co-owner?

Possibly, but the answer depends on the circumstances. The right to contribution for mortgage payments is not automatic. It depends on any agreement between the parties, whether the co-owner in default was in a position to contribute, and the overall accounting between the co-owners including occupation of the property and any rental income. The rules established in cases including Squire v Rogers (1979) 27 ALR 330 provide the framework, but the outcome turns on specific facts. Legal advice before making a contribution claim is worthwhile; the calculation is more nuanced than many co-owners expect.

My co-owner and I are separating. Should I proceed under co-ownership law or family law?

If you were in a de facto relationship, the Family Law Act 1975 (Cth) provides a property settlement framework that takes a broader view of contributions and future needs than co-ownership law does. Family law proceedings must generally be commenced within two years of separation. Co-ownership law under the Property Law Act 2023 (Qld) is available regardless of the relationship, but its accounting rules are more technical and less flexible. In most relationship breakdown cases involving property, the Family Law Act pathway produces a more comprehensive resolution. See property settlement for further information. Fraser Lawyers can advise on which framework better suits your position.

How do I sever a joint tenancy?

Severance converts a joint tenancy into a tenancy in common and destroys the right of survivorship from the point it takes effect. Under s 59 of the Land Title Act 1994 (Qld), a joint tenant can sever unilaterally by registering a transfer of their own interest; the registrar can register it only once the owner has given, or made a reasonable attempt to give, each other joint tenant written notice or a copy of the instrument. Severance can also occur by mutual agreement or by a sufficient course of dealing. Making a will leaving your share to someone else is not, by itself, effective severance in Queensland. Because severance operates on registration, it needs to be lodged and registered with the Titles Office to take effect. Fraser Lawyers can advise on the most appropriate method in your circumstances.

What happens to my co-ownership share if I die without severing the joint tenancy?

If you hold as a joint tenant and you die without severing, your share passes automatically to the surviving co-owner or co-owners by operation of law. It does not pass under your will, and it does not form part of your estate for distribution to your beneficiaries. If your intention is for your share to pass to someone other than your co-owner, you must sever the joint tenancy before death. A will alone is not sufficient. This is one of the most common and consequential misunderstandings in co-ownership law.

Can a court order one co-owner to pay occupation rent to the other?

Sometimes. Occupation rent is dealt with under s 40 of the Property Law Act 2023 (Qld). A court can require a co-owner who has occupied the land to pay an amount equivalent to rent to a co-owner who did not, but only in one of three situations: where the occupying co-owner is themselves seeking compensation, reimbursement or an accounting for money they spent on the property; where the non-occupying co-owner was excluded from the property; or where the non-occupying co-owner suffered a detriment because it was not practicable to occupy the property together. Simple non-occupation, or a practical arrangement where one co-owner lives there and the other does not, does not by itself create an obligation to pay occupation rent. It is usually resolved as part of the accounting on a sale or division application.

Talk to Fraser Lawyers about your co-ownership matter.

Co-ownership disputes rarely improve with time. A short enquiry is usually enough to identify the framework that applies and whether there is a practical path to resolution without court proceedings. Fraser Lawyers is based at 86 Bundall Road, Bundall, and acts for clients across the Gold Coast and throughout Queensland.

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