Sheriff Court case concerning the division and sale of a property on Shiskine Drive, Maryhill in Glasgow. Mr Collins and Ms Sweeny each had a one half pro-indiviso share in the property (which was incapable of division). Mr Collins sought a sale of the property on the open market and division of the proceeds. Ms Sweeney sought an order compelling the sale of Mr Collins share of the property to her. She argued that there were equitable considerations which justified the granting of such an order; pointing to the fact that she could afford to acquire and maintain the property whereas Mr Collins could not, referring to other litigation between the parties (including an exclusion order) and making a case for the purchase of the property by her for the sake of a child of the relationship between the parties.

The principle issue for the court was whether the court could competently grant decree for the sale to a co-proprietor, against the will of the other proprietor, rather than on the open market.

After considering the authorities, the sheriff concluded that, even if proved, the equitable considerations did not constitute a defence to Mr Collins’ absolute right to insist on a sale on the open market. Although there was authority for the court to make an order for the sale of a pro-indiviso share to a co-proprietor, this only applied where both parties consented. In the absence of consent, where the property cannot be divided, a co-proprietor has an absolute right to insist upon sale on the open market and cannot be obliged to sell to a co-proprietor against his will.

The full judgment is available from Scottish Courts here.

(See appeal to sheriff principal here.)

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.