Written for Property Poser
This week the Property Poser panel deals with a case of sibling rivalry between two brothers who co-own a property, in which the one lives.
The reader, who resides elsewhere, appears to be having communication issues with his brother. He has discovered that his sibling has made arrangements regarding outstanding instalments and payments at the bank and municipality without his knowledge.
The reader does not, however, mention whether the arrangements entered into have any direct financial consequences for him.
The siblings are, from a legal perspective, partners in respect of the ownership of the house, says Stiaan Jonker of Smith Tabata Attorneys in Port Elizabeth.
“The rights and obligations of the partners would, in the absence of alternative arrangements, be equal.”
Jonker says one could assume that the sibling probably pays a rental to the reader for the use of his half-share of the property.
“As far as the other obligations are concerned, payments should be made by the partnership.”
It would appear that the partnership has fallen behind in some aspects, hence the arrangements, says Jonker.
“Partners are jointly and severally liable for the debts of the partnership and one partner arranging to make payments isn’t problematic in itself. Assuming, of course, that he didn’t represent the other without consent.”
Jonker says the partner making payments on behalf of the partnership has a right of recourse against the non-paying partner to claim the portion he should have paid.
“Our reader seems to feel quite strongly that his rights have been ignored by the bank and municipality. He feels that this should assist him in being released from the partnership.”
According to Susan Chapman from Rawson Properties PE Platinum, the reader has not explained the internal arrangements between the partners or whether there is even a partnership agreement in place.
“Of course, if there is such an agreement, this is the first place for our reader to look to determine his rights insofar as dissolving the partnership is concerned.”
Chapman says having a written agreement in place has many benefits and protects both parties in a partnership.
“Legally, dissolution may not be difficult to enforce but, in the absence of an agreement, it becomes increasingly difficult for one partner to dissolve the partnership where a fixed property is involved.”
The ownership of fixed property is recorded in the deeds office and, as seems to be the case here, a mortgage bond may be registered over the property, which binds both partners to pay the instalments, says Chapman.
“Our reader has mentioned that his sibling won’t sell. In this instance, there may be some merit in our reader trying to mend bridges with his sibling so as to reach an amicable arrangement that also takes into account any financial obligations to a bondholder and the like.”
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