The High Court has refused to order the sale of a Dublin 15 home in a property dispute between M.C. and B.S., finding that M.C. held a one-tenth share in its equity of redemption and B.S. held nine-tenths.
In a judgment delivered on 17 June 2008, Mr Justice Herbert also held that the court had jurisdiction to grant partition or a sale instead of partition under the Partition Acts 1868 and 1876. The case came to the High Court as an appeal. M.C. had sought a sale and an opportunity to buy the property and its contents; she also claimed a 50% beneficial interest.
The parties bought the three-bedroom house in 1993 for £35,000 and were registered as joint owners. They took a joint mortgage of £32,200. The judge found that they pooled income to meet household costs and mortgage payments until M.C. left in November 1994. He accepted that she contributed £1,000 borrowed from her employer and credited each party with half of £3,064.70 in mortgage payments made from the common fund before she left. He found her contribution to the purchase was £2,532.35, including the employer loan.
The judge found that B.S. later paid about €41,703 towards the mortgage, as well as other purchase costs and sums from personal borrowing. He concluded M.C. had no interest in or benefit from those later payments. The court treated the parties as persons without a special legal relationship for this property assessment: the marriage ceremony had been declared null and void in a separate 1998 order. It found the property was held in trust as tenants in common in unequal shares, despite the joint legal title.
Under section 5 of the 1868 Act, a sale was discretionary. The judge was not satisfied that M.C. had shown a fair reason requiring B.S. to submit to a sale. He noted that she sought to acquire the property on advantageous terms, while B.S. had lived there since 1993 and the home was also occupied by their adult daughter and her child. The court declined to direct a sale.
The judgment said that if B.S. voluntarily undertook to buy M.C.’s share and she accepted the offer, the court could order a valuation. M.C. could accept or reject that valuation. If she rejected the undertaking or valuation, the court would order partition of the equity of redemption in the shares already determined. The judgment did not itself direct a sale or complete a partition.