Ellison v Cleghorn

Where co-owners acquire land intending eventually to divide it between them, partition is the direct and natural means of achieving that objective. The court may order partition without unanimous consent and may require equality money where necessary to achieve justice.

The parties’ arrangement is determined by their common intention. An agreement to divide land into equally sized plots does not, without more, require equal development or site values. Equality money should compensate only for proven adverse effects caused by a breach of the parties’ obligations. The court should also take account of acquiescence, particularly where the claimant knowingly permits expenditure on works that would otherwise require reversal or compensation.

The parties jointly purchased land as tenants in common in equal shares, intending that it should be divided into two plots and developed as separate homes. The defendant built a house and garage on the front plot. The claimant’s development of the rear plot failed because of building and supervisory difficulties.

The claimant sought a sale or repayment of his contribution. The defendant sought sole ownership of his plot or, alternatively, an unequal division of sale proceeds. By closing submissions, the parties accepted that partition was appropriate. The central issues were the proper boundary, the parties’ original common intention, and whether the claimant should receive equality money for alleged adverse effects of the defendant’s development.

1. Partition. Section 14 of the Trusts of Land and Appointment of Trustees Act 1996 empowered the court to direct partition without the consent of all beneficiaries, with or without equality money. Section 15 required regard to the intentions of the persons creating the trust and the purposes for which the property was held. Where co-owners intended land eventually to be divided between them, partition was the direct and natural means of achieving that objective.
2. Common intention and obligations. The parties’ original bargain was to divide the land, excluding the shared driveway, into plots of equal area. It did not require plots of equal value or houses of equal size, cost or value. Each party nevertheless owed an obligation not, without prior consent, to take steps on his plot which significantly adversely affected the other party’s ability to achieve the agreed objective of building a satisfactory house on an equally sized plot.
3. Equality money. Equality money was not intended to equalise the present development or site values. It could compensate only for the aggregate monetary effect of proven breaches of those obligations. Acquiescence had to be taken into account. The claimant had acquiesced in the garage’s location before substantial expenditure was incurred, and the alleged adverse effects were either unproved, causally unsupported, remedied, or attributable to matters for which the defendant was not responsible.
4. Order. The property was to be partitioned along the existing boundary, with the driveway forming part of the rear plot subject to rights of way, access and service-maintenance obligations. No equality money was payable.