“My father recently passed away and left the land under his will equally to all his children. While none of us want to farm the land in our own right, already there is tension rising as to what to do with the land – who to rent it to, for how long, how much etc. I am afraid that it will be impossible for us all to reach agreement and that it could lead to a family falling-out. While we all want to keep the land at present, what would happen if one of us wanted to cash in on our share?”

This is an issue which affects a lot of farm families. The two most common types of co-ownership of land are joint tenancies and tenancies in common. Spouses/civil partners often hold property as joint tenants, whereas the usual method of ownership of land between siblings is as tenants in common. The use of the word “equally” (words of severance) would indicate that the property was left to you and your siblings as tenants in common. The importance of identifying how the property is held relates essentially to survivorship – how each of your respective shares in the land can be passed on to the next generation. In the case of a joint tenancy, the surviving co-owner/co-owners automatically inherit the share of the co-owner that dies. In the case of a tenancy in common, the co-owner that dies can leave their share to another person under their will or their next of kin on intestacy.

While the shares of tenants in common do not have to be equal – for example, one co-owner could be entitled to a half share while the other two are entitled to a quarter each – this does not confer an exclusive right in respect of any part of the co-owned land. Where co-owners divide the land into individual areas in which each will have the respective right to exclude the others, this amounts to a partition which brings the co-ownership to an end.

Difficulties

In order to address difficulties in the co-ownership of property, it is often thought best to bring the co-ownership to an end. This can be achieved as follows:

  • By one co-owner purchasing the interests of the other co-owners;
  • By physically dividing the property into portions over which individual co-owners will have exclusive rights;
  • By sale in lieu of partition.
  • While the above options may need all the co-owners to agree to bring the co-ownership to an end, one co-owner can effect a partition or court sale through an application to the courts without the need for consent or agreement from the other co-owners.

    The Land and Conveyancing Law Reform Act introduced a provision whereby any person who has an interest in land which is co-owned may apply to the court for an order for partition of the land among the co-owners or an order for the sale of the land and distribution of the proceeds of sale as the court directs.

    Security

    A bank that has co-owned land as security for a loan can apply to the court for such an order and the court may direct it, even if the other co-owners have no interest in that loan and object to such an application by the bank. However, this only applies to a judgment mortgage registered against registered land after 1 December 2009. For judgment mortgages registered prior to 1 December 2009, the courts do not have jurisdiction to order a sale of registered co-owned land on foot of a judgment mortgage which is registered against one of the co-owners only.

    The act also makes provision for a co-owner of land to apply to the court for an order directing that accounting adjustments be made as between co-owners. Accounting adjustments include the payment of an occupation rent by a co-owner who has enjoyed or is continuing to enjoy occupation of the land to the exclusion of any other co-owner. Accounting adjustments could also include compensation to be paid by a co-owner to any other co-owner who has incurred disproportionate expenditure in respect of the land (including its repair or improvement). The court could also direct that any other accounting adjustment be made to achieve fairness between the co-owners.

    The practical effect of co-owned land is that the property cannot be dealt with unless you have the agreement of all co-owners. All co-owners must agree to a lease before an effective lease of co-owned land can be granted. However, the service of a notice to quit bringing to an end a periodic tenancy which was granted by co-owning landlords does not require the agreement of all the co-owners.

    Disclaimer: The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information contained in this article, Aisling Meehan, Agricultural Solicitors, does not accept responsibility for errors or omissions howsoever arising. E-mail ameehan@farmersjournal.ie