Written for Property Poser

Problems associated with co-ownership is an oft-repeated topic for our Property Poser experts. This week’s situation highlights just how difficult the relationship can be.

A reader writes that she co-owns a residential property with her mother, who has lived there since they purchased it. The daughter has moved out on occasion and during this time any tenants had to contribute to her portion of the bond.

She says the arrangement is that she and her mother each contribute R1 000 per month.

The reader says some of the issues between them stem from the fact that her mother’s new partner lives with her but refuses to pay rent, which the daughter feels he should.

About a year ago, problems escalated when she wanted to move back into the property with her own daughter and three dogs. Her mother attempted to obtain an interdict against her to prevent her from bringing the dogs, as she claimed that they would mess up the garden.

The interdict was not successful and the daughter moved back into the house, but recently vacated the property again. She has obtained an estimate of the market-related rental, which is around R4 500 per month.

After moving out, the reader suggested that her mother pay the full bond instalment since she now occupies the whole property. The mother has done so, but is threatening to take action against her for non-payment of the bond.

The reader would like to know what her rights and obligations are in this regard.

As joint owners of the property, mother and daughter each own an undivided half-share, says Rian du Toit from DTS Attorneys in Port Elizabeth.

“When one party no longer occupies his or her share, the remaining owner obviously has the use and enjoyment of the whole property, which includes the undivided half-share belonging to the other.”

Du Toit says the bond instalment must not be confused with payment entitling someone to live there. “The bond payments are made towards acquiring ownership of the property.”

Having said that, a set-off arrangement could be entered into, says Du Toit.

“This means that the daughter may charge her mother rental for the half-share of the property that the mother is occupying.”

Instead of this rental being paid to the daughter, the agreement could specify that it be paid directly to the bank as the reader’s portion of the bond, says Charlotte Vermaak from Chas Everitt in PE.

“If however the market-related rental for the property is R4 500 per month as the reader claims, it could mean that the mother still has to pay the excess to her daughter. This is over and above the bond payment, unless they agree on a different rental amount.”

Vermaak says entering into a simple contract when they first bought the property together could have served to avoid many of the issues now faced by the reader.

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