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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Property (Co-ownership) Act 2005
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purposes 2
2. Commencement 2
3. Application of section 187 of the Property Law Act 1958
limited 2
4. New section 187A inserted 3
187A. Transitional provision--Property (Co-ownership)
Act 2005 3
5. Part IV of the Property Law Act 1958 substituted 3
PART IV--CO-OWNED LAND AND GOODS 3
Division 1--Preliminary 3
221. Application of Part to land 3
222. Definitions 3
223. Other forms of severance not affected 4
224. Security interests not affected 5
Division 2--Sale and Division 5
225. Application for order for sale or division of co-owned
land or goods 5
226. Who are parties to a proceeding? 6
227. Adjournment of hearings--spouses or domestic
partners 6
228. What can VCAT order? 7
229. Sale and division of proceeds to be preferred 7
230. Order varying entitlements to land or goods 8
231. VCAT may order appointment of trustees 8
232. Other matters in VCAT orders 10
233. Orders as to compensation and accounting 11
Division 3--Accounting 13
234. Application for order for accounting 13
234A. Who are parties to a proceeding? 14
234B. What can VCAT order? 14
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Clause Page
Division 4--Jurisdiction 14
234C. Jurisdiction 14
234D. Powers of courts 16
234E. More appropriate forum 16
234F. Appeals on questions of law not affected 16
234G. Supreme Court--limitation of jurisdiction 16
Division 5--General 16
234H. Regulations 16
234I. Transitional provision--Property (Co-ownership)
Act 2005 17
6. Consequential amendment of Schedule 1 to the Victorian
Civil and Administrative Tribunal Act 1998 17
7. Amendment of Transfer of Land Act 1958 17
ENDNOTES 19
ii
551343B.I1-13/9/2005 BILL LA INTRODUCTION 13/9/2005
PARLIAMENT OF VICTORIA
A BILL
to amend the Property Law Act 1958 to provide for the transfer of
jurisdiction of disputes relating to the co-ownership of land and goods
from the Supreme Court and the County Court to VCAT and provide
for the remedies available for determining those disputes, to
consequentially amend the Victorian Civil and Administrative
Tribunal Act 1998 and the Transfer of Land Act 1958 and for other
purposes.
Property (Co-ownership) Act 2005
The Parliament of Victoria enacts as follows:
1
551343B.I1-13/9/2005 BILL LA INTRODUCTION 13/9/2005
Property (Co-ownership) Act 2005
s. 1
Act No.
1. Purposes
The main purposes of this Act are--
(a) to amend the Property Law Act 1958 to
provide for--
(i) the transfer of jurisdiction for disputes
5
relating to the co-ownership of land and
goods from the Supreme Court and
County Court to VCAT; and
(ii) the remedies available for determining
those disputes; and
10
(b) to consequentially amend the Victorian
Civil and Administrative Tribunal Act
1998 and the Transfer of Land Act 1958.
2. Commencement
(1) Subject to sub-section (2), this Act comes into
15
operation on a day or days to be proclaimed.
(2) If a provision referred to in sub-section (1) does
not come into operation before 1 July 2006, it
comes into operation on that day.
See: 3. Application of section 187 of the Property Law Act
20 Act No.
1958 limited
6344.
Reprint No. 11
At the end of section 187 of the Property Law
as at
19 May 2004
Act 1958 insert--
and
amending
"(2) Despite sub-section (1), if the chattels in
Act Nos
relation to which the application could be
25 108/2004 and
18/2005.
made are goods within the meaning of
LawToday:
Part IV, a person must make an application
www.dms.
dpc.vic.
under Division 2 of Part IV, not an
gov.au
application under sub-section (1).
(3) It is the intention of sub-section (2) to alter
30
or vary section 85 of the Constitution Act
1975.".
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Property (Co-ownership) Act 2005
s. 4
Act No.
4. New section 187A inserted
After section 187 of the Property Law Act 1958
insert--
"187A. Transitional provision--Property
(Co-ownership) Act 2005
5
Section 187 as in force immediately before
the commencement of section 3 of the
Property (Co-ownership) Act 2005
continues to apply in respect of any
proceeding commenced in the Supreme
10
Court or the County Court under that section
before that commencement as if section 187
had not been amended by that Act.".
5. Part IV of the Property Law Act 1958 substituted
For Part IV of the Property Law Act 1958
15
substitute--
'PART IV--CO-OWNED LAND AND GOODS
Division 1--Preliminary
221. Application of Part to land
This Part applies to all land in Victoria,
20
whether or not the land is registered under
the Transfer of Land Act 1958.
222. Definitions
In this Part--
"co-owner" means a person who has an
25
interest in land or goods with one or
more other persons as--
(a) joint tenants; or
(b) tenants in common;
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s. 5
Act No.
"goods" means--
(a) chattels personal; or
(b) fixtures severable from land--
but does not include--
(c) things in action; or
5
(d) money;
"land" has the same meaning as it has in the
Interpretation of Legislation Act
1984;
"property" means--
10
(a) real and personal property,
including any estate or interest in
real or personal property; or
(b) money; or
(c) a debt; or
15
(d) a thing in action; or
(e) a right with respect to property;
"security interest" means an interest in or
power over property by way of security
for the payment of a debt or other
20
pecuniary obligation and includes, in
relation to land, a mortgage, charge or
lien, whether or not registered under the
Transfer of Land Act 1958.
223. Other forms of severance not affected
25
Nothing in this Part affects or prevents the
severing of a joint tenancy by any other
means that exist under this Act or any other
Act or law.
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s. 5
Act No.
224. Security interests not affected
Despite anything to the contrary in any
instrument creating a security interest, the
severing of a joint tenancy in accordance
with this Part--
5
(a) does not constitute a breach of the
covenants or terms of that instrument;
and
(b) does not affect any existing powers,
rights or interests of the holder of a
10
security interest over the property to
which that severance relates.
Division 2--Sale and Division
225. Application for order for sale or division
of co-owned land or goods
15
(1) A co-owner of land or goods may apply to
VCAT for an order or orders under this
Division to be made in respect of that land or
those goods.
(2) An application under this section may
20
request--
(a) the sale of the land or goods and the
division of the proceeds among the co-
owners; or
(b) the physical division of the land or
25
goods among the co-owners; or
(c) a combination of the matters specified
in paragraphs (a) and (b).
(3) A person who makes an application under
sub-section (1) must give notice of the
30
application to the holder of a security interest
over the land or goods to which the
application relates.
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s. 5
Act No.
226. Who are parties to a proceeding?
In addition to any other parties, all
co-owners of the land or goods to which the
proceeding relates are parties to a proceeding
in VCAT under this Division.
5
Note: Sections 59 and 60 of the Victorian Civil and
Administrative Tribunal Act 1998 also deal
with parties to a proceeding.
227. Adjournment of hearings--spouses or
domestic partners
10
(1) VCAT may adjourn its hearing at any time
before it has made a final order under this
Division or Division 3 if proceedings in
relation to property of a co-owner who has
made an application under this Division or
15
Division 3 are commenced--
(a) under the Family Law Act 1975 of the
Commonwealth; or
(b) under Part IX of this Act.
(2) VCAT may adjourn its hearing at any time
20
before it has made a final order under this
Division or Division 3 to permit a co-owner
of property to commence proceedings in
relation to property of the co-owner--
(a) under the Family Law Act 1975 of the
25
Commonwealth; or
(b) under Part IX of this Act.
(3) Nothing in this section limits the power of
VCAT to grant or refuse an adjournment in
relation to any proceeding before it.
30
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s. 5
Act No.
228. What can VCAT order?
(1) In any proceeding under this Division,
VCAT may make any order it thinks fit to
ensure that a just and fair sale or division of
land or goods occurs.
5
(2) Without limiting VCAT's powers, it may
order--
(a) the sale of the land or goods and the
division of the proceeds of sale among
the co-owners; or
10
(b) the physical division of the land or
goods among the co-owners; or
(c) that a combination of the matters
specified in paragraphs (a) and (b)
occurs.
15
229. Sale and division of proceeds to be
preferred
(1) If VCAT determines that an order should be
made for the sale and division of land which
is, or goods which are, the subject of an
20
application under this Division, VCAT must
make an order under section 228(2)(a) unless
VCAT considers that it would be more just
and fair to make an order under section
228(2)(b) or (c).
25
(2) Without limiting any matter which VCAT
may consider, in determining whether an
order under section 228(2)(b) or (c) would be
more just and fair, VCAT must take into
account the following--
30
(a) the use being made of the land or
goods, including any use of the land or
goods for residential or business
purposes;
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s. 5
Act No.
(b) whether the land is, or goods are, able
to be divided and the practicality of
dividing the land or goods;
(c) any particular links with or attachment
to the land or goods, including whether
5
the land or the goods are unique or have
a special value to one or more of the
co-owners.
230. Order varying entitlements to land or
goods
10
When making an order under section 228,
VCAT, if it considers it just and fair, may
order--
(a) that the land or goods be physically
divided into parcels or shares that differ
15
from the entitlements of each of the
co-owners; and
(b) that compensation be paid by specified
co-owners to compensate for any
differences in the value of the parcels
20
or shares when the land or the goods
are divided in accordance with an order
under paragraph (a).
231. VCAT may order appointment of trustees
(1) In any proceeding under this Division, if
25
VCAT thinks that the appointment or
removal of trustees is necessary or desirable,
it may order--
(a) the appointment of trustees; or
(b) the removal of trustees.
30
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s. 5
Act No.
(2) In an order appointing trustees for the
purposes of the sale of land or goods, VCAT
may--
(a) direct the trustees as to the terms and
conditions on which any sale is to be
5
carried out;
(b) direct the distribution of any proceeds
of the sale in any manner specified by
VCAT.
(3) In an order appointing trustees for the
10
purposes of a physical division of land or
goods, VCAT may direct the trustees as to
the manner in which the division is to be
carried out.
(4) An order under this section may provide for
15
the remuneration of the trustees appointed
under the order and--
(a) if trustees are appointed for the
purposes referred to in sub-section (2),
the order may provide that the
20
remuneration of the trustees be paid
from the proceeds of sale; and
(b) if the trustees are appointed for the
purposes referred to in sub-section (3),
the order may provide that the
25
remuneration of the trustees be paid by
such parties to the proceeding as VCAT
considers just and fair in the
circumstances.
30 Note: See also the Trustee Act 1958.
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s. 5
Act No.
232. Other matters in VCAT orders
In any proceeding under this Division,
VCAT may order--
(a) that the land or goods be sold by private
sale or at auction;
5
(b) that the co-owners may purchase the
land or goods at that sale or auction;
(c) in the case of a private sale, that the
sale be at fair market price as
determined by an independent valuer;
10
(d) in the case of an auction, that the
reserve price is the reserve price set by
VCAT;
(e) that an independent valuation of the
land or goods take place;
15
(f) that a sale is to be completed within a
specified time;
(g) that the costs of the sale be met--
(i) by one or more of the co-owners;
or
20
(ii) from the proceeds of the sale;
(h) that the sale and division of the
proceeds of sale or the physical division
of the land or goods is subject to any
terms and conditions which VCAT
25
considers necessary or desirable in any
particular case;
(i) in the case of land, that any necessary
deed or instrument be executed and
documents of title be produced or other
30
things be done that are necessary to
enable an order to be carried out
effectively;
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s. 5
Act No.
(j) in the case of land to which the
Transfer of Land Act 1958 applies,
directing the Registrar of Titles to make
amendments to the Register within the
meaning of that Act or do any act or
5
make any recordings necessary to give
effect to an order under this Division.
233. Orders as to compensation and
accounting
(1) In any proceeding under this Division,
10
VCAT may order--
(a) that compensation or reimbursement be
paid or made by a co-owner to another
co-owner or other co-owners;
(b) that one or more co-owners account to
15
the other co-owners in accordance with
section 28A;
(c) that an adjustment be made to a
co-owner's interest in the land or goods
to take account of amounts payable by
20
co-owners to each other during the
period of the co-ownership.
(2) In determining whether to make an order
under sub-section (1), VCAT must take into
account the following--
25
(a) any amount that a co-owner has
reasonably spent in improving the land
or goods;
(b) any costs reasonably incurred by a
co-owner in the maintenance or
30
insurance of the land or goods;
(c) the payment by a co-owner of more
than that co-owner's proportionate share
of rates (in the case of land), mortgage
repayments, purchase money,
35
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s. 5
Act No.
instalments or other outgoings in
respect of that land or goods for which
all the co-owners are liable;
(d) damage caused by the unreasonable use
of the land or goods by a co-owner;
5
(e) in the case of land, whether or not a
co-owner who has occupied the land
should pay an amount equivalent to rent
to a co-owner who did not occupy the
land;
10
(f) in the case of goods, whether or not a
co-owner who has used the goods
should pay an amount equivalent to rent
to a co-owner who did not use the
goods.
15
(3) VCAT must not make an order requiring a
co-owner who has occupied the land to pay
an amount equivalent to rent to a co-owner
who did not occupy the land unless--
(a) the co-owner who has occupied the
20
land is seeking compensation,
reimbursement or an accounting for
money expended by the co-owner who
has occupied the land in relation to the
land; or
25
(b) the co-owner claiming an amount
equivalent to rent has been excluded
from occupation of the land; or
(c) the co-owner claiming an amount
equivalent to rent has suffered a
30
detriment because it was not practicable
for that co-owner to occupy the land
with the other co-owner.
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Act No.
(4) VCAT must not make an order requiring a
co-owner who has used goods to pay an
amount equivalent to rent to a co-owner who
did not use the goods unless--
(a) the co-owner who has used the goods is
5
seeking compensation, reimbursement
or an accounting for money expended
by the co-owner who has used the
goods in relation to the goods; or
(b) the co-owner claiming an amount
10
equivalent to rent has been excluded
from using the goods; or
(c) the co-owner claiming an amount
equivalent to rent has suffered a
detriment because it was not practicable
15
for that co-owner to use the goods with
the other co-owner.
(5) This section applies despite any law or rule
to the contrary.
Division 3--Accounting
20
234. Application for order for accounting
(1) A co-owner of land or goods may apply to
VCAT for an order under this Division to be
made for an accounting in accordance with
section 28A.
25
(2) An application under this section may be
made whether or not an application is made
under Division 2.
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s. 5
Act No.
234A. Who are parties to a proceeding?
In addition to any other parties, all
co-owners of the land or goods to which the
proceeding relates are parties to a proceeding
in VCAT under this Division.
5
Note: Sections 59 and 60 of the Victorian Civil and
Administrative Tribunal Act 1998 also deal
with parties to a proceeding.
234B. What can VCAT order?
(1) In any proceeding under this Division,
10
VCAT may make any order it thinks fit to
ensure that a just and fair accounting of
amounts received by co-owners in respect of
the land or goods occurs.
(2) Without limiting VCAT's powers, it may--
15
(a) order a co-owner who has received
more than the share of rent or other
payments from a third party in respect
of the land or goods to which that
co-owner is entitled to account for that
20
rent or other payments to the other
co-owners; and
(b) make any order it considers just and
fair for the purposes of an accounting
by a co-owner who has received more
25
than that co-owner's just and
proportionate share to the other
co-owners of the land or goods.
Division 4--Jurisdiction
234C. Jurisdiction
30
(1) Subject to this section, the Supreme Court
and the County Court do not have
jurisdiction to hear an application under this
Part.
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s. 5
Act No.
(2) The Supreme Court and the County Court
have jurisdiction to hear an application under
this Part if the matter which is the subject of
the application relates to a proceeding
under--
5
(a) Part IX of this Act; or
(b) Part IV of the Administration and
Probate Act 1958; or
(c) the Partnership Act 1958.
(3) VCAT does not have jurisdiction to hear an
10
application of a kind referred to in sub-
section (2).
(4) The Supreme Court and the County Court
have jurisdiction to hear an application under
this Part if--
15
(a) in any proceeding which has
commenced in the Supreme Court or
the County Court (as the case requires),
the issue of co-ownership of land or
goods arises in the course of that
20
proceeding; or
(b) in the opinion of the Supreme Court or
the County Court (as the case requires),
special circumstances exist which
justify the Supreme Court or the
25
County Court hearing the application.
(5) For the purposes of sub-section (4), "special
circumstances" means circumstances in
which--
(a) the matter which is the subject of the
30
application is complex; or
(b) the matter which is the subject of the
application, or a substantial part of that
matter, does not fall within the
jurisdiction of VCAT.
35
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Property (Co-ownership) Act 2005
s. 5
Act No.
234D. Powers of courts
Without limiting any powers of a court to
make any order, in any proceeding in
relation to the co-ownership of land or
goods, a court may make any order which
5
VCAT could make under this Part.
234E. More appropriate forum
Nothing in this Division prevents VCAT
from referring a matter to the Supreme Court
or the County Court under section 77 of the
10
Victorian Civil and Administrative
Tribunal Act 1998.
234F. Appeals on questions of law not affected
Nothing in this Division affects the operation
of Part 5 of the Victorian Civil and
15
Administrative Tribunal Act 1998.
234G. Supreme Court--limitation of jurisdiction
It is the intention of section 234C to alter or
vary section 85 of the Constitution Act
1975.
20
Division 5--General
234H. Regulations
The Governor in Council may make
regulations for or with respect to any matter
or thing that is required or permitted by this
25
Part to be prescribed or that is necessary or
convenient to be prescribed for carrying out
or giving effect to this Part.
16
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Property (Co-ownership) Act 2005
s. 6
Act No.
234I. Transitional provision--Property
(Co-ownership) Act 2005
Part IV as in force immediately before the
commencement of section 5 of the Property
(Co-ownership) Act 2005 continues to
5
apply in respect of any proceeding
commenced in the Supreme Court or the
County Court under that Part before that
commencement as if Part IV had not been
substituted by that Act.'.
10
6. Consequential amendment of Schedule 1 to the
Victorian Civil and Administrative Tribunal Act
1998
In Schedule 1 to the Victorian Civil and
Administrative Tribunal Act 1998, after Part 16
15
insert--
"PART 16A--PROPERTY LAW ACT 1958
66A. Constitution of Tribunal
In a proceeding under Part IV of the Property Law
20 Act 1958, the Tribunal is to be constituted by or is to
include a member who, in the opinion of the
President, has knowledge of or experience in property
law matters.".
7. Amendment of Transfer of Land Act 1958
(1) After section 103(1) of the Transfer of Land Act
25
1958 insert--
"(1AA) In any proceeding in VCAT under Part IV of
the Property Law Act 1958 relating to land
or any instrument or dealing in respect of
land, if VCAT directs the Registrar to make
30
any amendment to the Register or otherwise
to do any act or make any recordings
necessary to give effect to an order of VCAT
under that Part, the Registrar must obey that
direction.".
35
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Property (Co-ownership) Act 2005
s. 7
Act No.
(2) After section 104(3A)(c) of the Transfer of Land
Act 1958 insert--
"(ca) a transfer to give effect to an order of VCAT
under Part IV of the Property Law Act
1958; or".
5
(3) In section 116A of the Transfer of Land Act
1958--
(a) in sub-section (1), after "by summons" insert
"or, in the case of land or any instrument or
dealing with respect to land which is the
10
subject of an order by VCAT under Part IV
of the Property Law Act 1958, may apply
to VCAT";
(b) in sub-sections (2) and (3), after "Court"
(wherever occurring) insert "or VCAT, as
15
the case requires,".
18
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Property (Co-ownership) Act 2005
Endnotes
Act No.
ENDNOTES
By Authority. Government Printer for the State of Victoria.
19
551343B.I1-13/9/2005 BILL LA INTRODUCTION 13/9/2005
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