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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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) empowers a court to appoint a trustee for sale or partition 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: Statutory trust for sale or partition under the Property Law Act 2023 (Qld) s 215 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

What happens after you are charged.

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. It does not require the consent of the other. Methods of severance include: a unilateral act operating on the joint tenant’s own share (such as a transfer to a trustee); mutual agreement; or a course of dealing sufficient to intimate that the parties have treated their interests as tenancies in common. Once severed, the right of survivorship is destroyed.

Partition or sale under statute. Where co-owners cannot agree on the future of the property, any co-owner may apply to court under the *Property Law Act 2023* (Qld) s 215 for the appointment of a trustee for sale or for physical partition of the land. The court has a broad discretion as to the terms of any order, including how the proceeds of sale are divided and what adjustments are made for contributions to mortgage, maintenance and improvements.

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) s 215 resolves this. A co-owner can apply to court for the appointment of a trustee for sale or, where the land is physically divisible, for partition. The court may make the order regardless of the other co-owner’s objection. Obstruction by one co-owner is not a defence to the application; it is generally the reason for making it.

The court retains discretion as to the terms of the order. It can impose conditions, direct how the proceeds are divided, require an accounting between the co-owners before distribution, and determine the trustee’s remuneration. A co-owner who has paid more than their proportionate share of the mortgage or maintenance costs can raise those contributions in the accounting, 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 starting principle, established in *Henderson v Eason* (1851) 17 QB 701, is that a tenant in common who has received more than their proportionate share of rents or other money paid by a third party can be required to account. That principle has a narrower application than many co-owners assume. In particular, a co-owner who occupies the property to the exclusion of the other is not automatically required to pay occupation rent. The co-owner in sole occupation can be required to account for occupation rent only where there has been an ouster, meaning active exclusion of the other co-owner rather than mere non-occupation.

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 *Limitations 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 partition application, or a sale application under the *Property Law Act 2023* (Qld) s 215 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, prepares the instrument and lodges it with the Titles Office. Severance converts the joint tenancy to tenancy in common and defeats the right of survivorship from that point forward.

Step 4 — Partition or sale application.

Where negotiation fails, the firm prepares a court application under the *Property Law Act 2023* (Qld) s 215 for the appointment of a trustee for sale or for partition. The application includes the accounting claim where relevant. The court can make all necessary orders at the one hearing, including as to the trustee’s powers and the distribution of proceeds.

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?

Yes. Under the *Property Law Act 2023* (Qld) s 215, any co-owner can apply to court for the appointment of a trustee for sale or for partition of the land. The court has a broad discretion but can make the order regardless of the other co-owner’s objection. The fact that one co-owner wants to retain the property is not, of itself, a sufficient reason to refuse a sale order. The court will consider the circumstances, including the nature of the co-ownership, whether any purpose of the co-ownership remains, and what accounting adjustments should be made before distribution of proceeds.

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 like Henderson v Eason (1851) 17 QB 701 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 of severance. One method recognised in Queensland is a transfer by the joint tenant of their interest to a third party (or to themselves as trustee), which severs the joint tenancy on registration. Severance can also occur by mutual agreement between the co-owners or by a sufficient course of dealing. The act of making a will leaving one’s share to another person is not, of itself, effective severance in Queensland. Severance should be lodged with the Titles Office to be effective against the title register. 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?

An order for occupation rent is available, but only where the co-owner in occupation has actively excluded the other from the property. Mere non-occupation by one co-owner, or a practical arrangement where one lives there and the other does not, does not of itself give rise to an obligation to pay occupation rent. The principle established in Henderson v Eason (1851) 17 QB 701 and applied in subsequent cases requires ouster, not simply exclusive use by agreement or default. Where ouster is established, occupation rent can be ordered as part of the accounting on a partition or sale 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.

Call (07) 5554 6116 Send a short enquiry