Sheehy -v- Talbot, [2008] IEHC 207 (2008)

Docket Number:2007 180 CA
Party Name:Sheehy, Talbot
Judge:Edwards J.

THE HIGH COURT ON CIRCUIT2007 No. 180 CADUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLININ THE MATTER OF THE PARTITION ACTS 1868 - 1876BETWEENMARIE SHEEHYRESPONDENT (PLAINTIFF)ANDTHOMAS TALBOTAPPELLANT (DEFENDANT)JUDGMENT of Mr. Justice John Edwards delivered on the 3rd day of July, 2008 Introduction1. This is an appeal against the judgment and order of the Circuit Court given in this matter on 9th July, 2007. The appeal was by way of a full rehearing.2. The proceedings are in the nature of a partition suit and for ease of reference it is proposed to hereinafter refer to the respondent (plaintiff) simply as the plaintiff and the appellant (defendant) simply as the defendant. The case involves a dwelling house property co-owned by the plaintiff and the defendant. At the time of its purchase the parties were not married but were in a domestic relationship and were living together as a couple. The property in question is registered land consisting of a leasehold estate under a long lease. The ownership of that interest is registered in the joint names of the plaintiff and the defendant. Accordingly, they are legally speaking joint tenants. However, as the parties contributed to the acquisition and subsequent improvement of the property in unequal shares the maxim that "equity leans against joint tenancies" comes into play so that in equity the parties are presumed to have acquired the property as tenants in common with beneficial interests proportionate to their respective contributions. Of course, this is only a presumption, and this presumption is open to rebuttal, but as neither of the parties in this case has sought at any time to argue in favour of its rebuttal the court intends to proceed on that basis.3. Unfortunately, unhappy differences have arisen between the parties and the plaintiff now seeks an order from the court directing the sale of the property and a division of the proceeds as between the parties in proportion to their respective beneficial interests. The plaintiff relies primarily on s. 4 of the Partition Act, 1868, but in the alternative seeks the same relief at the discretion of the court under s. 3 of the Partition Act 1868. The Law Relating to Partition or Sale in Lieu of Partition4. The law in this regard is succinctly stated in Wylie's Irish Land Law, 3rd Ed. at paras. 7.35 and 7.36 thereof (pages 442 - 445 inclusive). Professor Wylie states:-"[7.35] First, all the co-owners may voluntarily agree to put an end to their co-ownership and to partition the property in the manner they agree. By statute, such a voluntary partition by joint tenants or tenants in common must be by deed. If, however, the joint tenants or tenants in common could not agree on such a partition, there was no right at common law in any one of them to force a partition on the others. Such a right was first introduced by a statute passed by the Irish Parliament in 1542, which enabled a joint tenant or tenant in common to force the partition of the property on the other co-owners, whether or not it was sensible or convenient to have such a partition. This position was improved considerably by the passing of the Partition Acts, 1868 and 1876, both of which applied to Ireland."[7.36] These acts gave the court power to order a sale of the property instead of physical partition and to divide the proceeds amongst the co-owners in accordance with their shares. The obvious situation where this power would be invoked would be where the co-owners had held a single item of property, such as a house or other building which could not be easily partitioned so as to give each co-owner a viable part. Several points should be noted about the jurisdiction conferred by the Partition Acts. First, a distinction is drawn between cases where the interest of the applicant for partition or sale, or of the applicants collectively, comprises at least half the value of the property co-owned and cases where it does not. In the case of the former the applicant is entitled to a direction for a sale unless the court 'sees good reason to the contrary'. In the other cases the applicant must establish circumstances justifying a sale in lieu of partition such as the nature of the property or the number of interested parties, and convince the court that the sale 'would be more beneficial for the parties interested' for it to exercise its discretion to order a sale"…"Secondly, it is not entirely clear what the parameters of the jurisdiction under the two provisions is, a matter which has come under consideration by the Irish Courts recently in cases where one co-owner's interest has been mortgaged or charged and the mortgagee or chargee has invoked the jurisdiction to enforce its security against the other co-owner. For example, the suggestion that a court must order either partition or, if that is inappropriate or impracticable, a sale has been rejected on the basis that the jurisdiction confers a wider discretion, including the power to refuse both applications. Furthermore, the view has been taken that the court has a discretion, in cases where it is minded to order a sale, to postpone making an order pending enquiries about the feasibility of a sale or to make the order but to postpone the date of its becoming effective. Thirdly the jurisdiction can be invoked only by a party or parties "interested" in the co-owned property. This clearly includes a mortgagee of a co-owner's interest, including a judgment mortgagee." …"Lastly, in making an order for partition or a sale the court is to give 'all necessary or proper consequential directions'. It has long been settled that the courts will employ principles of 'equitable accounting' and make appropriate adjustments to ensure each co-owner is treated fairly. Costs of the sale are usually borne out of the proceeds, but special costs incurred in respect of a particular co-owner may be ordered to be borne by his share."Various authorities are footnoted in Professor Wylie's text in support of the propositions advanced. However, it is not necessary to refer to them as the court accepts without reservation that the passages just quoted accurately summarize the law.5. However, for completeness I think it would be appropriate to quote in full ss. 3 and 4 respectively of the Partition Act, 1868 and I now do so. Section 3 is in the following terms:-"In a suit for partition, where, if this act had not been passed, a decree for partition might have been made, then if it appears to the court that, by reason of the nature of the property to which the suit relates, or of the number of the parties interested or presumptively interested therein, or of the absence or disability of some of those parties, or of any other circumstance, a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them, the court may, if it thinks fit, on the request of any of the parties interested, and notwithstanding the dissent or disability of any others of them, direct a sale of the property accordingly, and may give all necessary or proper consequential directions".Section 4 is in the following terms:-"In a suit for partition, where, if this Act had not been passed, a decree for partition might have been made, then if the party or parties interested, individually or collectively, to the extent of one moiety or upwards in the property to which the suit relates, request the court to direct a sale of the property and a distribution of the proceeds instead of a division of the property between or among the parties interested, the court shall, unless it sees good reason to the contrary, direct the sale of the property accordingly and give all necessary or proper consequential directions."6. Though the lawyers in the case will understand this, it is necessary to state for the benefit of the parties, and in particular for the benefit of the defendant who is not legally represented, that the word moiety means a half, especially in legal or quasi legal use. Where the word is used with the intention of referring to an interest in property, it means a half-part, unless more than two persons are interested in the property in which case it refers to an equal part or share. The issues7. In the present case the plaintiff claims to be entitled to a legal and beneficial interest in the premises in question and, though she does not plead it in express terms in her Equity Civil Bill, counsel on her behalf opened the case on the basis that the plaintiff owns "a moiety or more of the premises". The defendant's defence is a handwritten document and was, I think, correctly characterized by counsel for the plaintiff as representing a plea de coeur. It does not expressly address the question of whether the plaintiff's interest amounts to "a moiety or more". Neither does it address the question as to whether the defendant has "a moiety or more". However, as the defendant is lay litigant and no point is taken by either party in respect of pleadings, I have approached the case on the basis that the defendant joins issue with the plaintiff in respect of all claims made by her. Furthermore, as it emerged in the course of the evidence that the defendant was himself contending for a 70% interest in the property as against a 30% interest in favour of the plaintiff, it is appropriate to treat him as effectively counterclaiming for a declaration that he is entitled himself to a least a moiety "or more" in the property. Moreover, the defendant's case is that the court ought, in the exercise of its discretion, to refuse to order either a partition or a sale. The defendant explained in evidence, and I understand it to a central plank of his case, that neither of these steps requires to be taken because for some time the parties have been successfully co-existing and living separate lives under the one roof without unduly interfering with each other, such that de facto the property is...

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