Sheriff Court case concerning the division and sale of a property on Shiskine Drive, Maryhill in Glasgow. Mr Collins and Ms Sweeney 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. Whereas Ms Sweeney sought an order compelling the sale of Mr Collins share of the property to her arguing that there were equitable considerations which justified the granting of such an order. The principle issue was whether the court could grant decree for the sale to a co-proprietor, against the will of the other proprietor, rather than on the open market.

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.

On appeal Ms Sweeney argued that the sheriff had erred contending, by reference to prior authority[1], that the court was bound to follow a two stage process when giving consideration to an action of division and sale. The first consideration involved recognition that the right to raise and pursue such an action is absolute. However, she also argued that there was a second consideration which involved the full equitable jurisdiction of the court in working out the remedy.

The sheriff principal rejected that argument finding that the reference to the equitable jurisdiction of the court in the prior cases referred to the courts discretion when considering (on an action for division and sale) whether the property can be divided between the parties or whether it cannot be divided and has to be sold (with the proceeds being divided between the parties). However, the court has no discretion to refuse an action for division and sale. Thus, in this case, Mr Collins could insist on upon a division and sale of the property and, as there was no question of the property being divided, the court’s discretion did not arise and a sale of the property had to take place (after which the proceeds would be divided).

The full judgment is available from Scottish Courts here.

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