This section is from the book "Real Property, An Introductory Explanation Of The Law Relating To Land", by Alfred F Topham. Also available from Amazon: The New Law Of Property.
Any joint tenant has, since the time of Henry VIII., always had a right to have the land partitioned, i.e. to have it divided up so that each takes a specified part of the land as his exclusive property.
He could apply to the Court by writ of partition (e), and he was entitled to have the land specifically divided, even if all the others wished to have it sold.
The Court had no power to decree a sale instead of partition.
Turner v. Morgan (1803), 8 Ves. 143; 11 Ves. 157 n.
A house was devised to three persons to be divided equally. One bought a third share from another. The house was ordered to be divided. The person entitled to one third objected to the partition as ordered on the ground that the other had all
(c) Partriche v. Powlet (1740), 2 Atk. 54.
(d) Moyse v. Oyles (1700), 2 Vern. 384.
(e) Goodeve, p. 236.
Joint Tenants and Tenants in Common 55 the chimneys, all the fireplaces, and the only staircase in the house.
Held, the partition must stand.
Now, by the Partition Act, 1868 (f) -
The Court has power to order a sale instead of a partition. The views of the holders of the greater share prevail unless the minority can prove to the Court that their view is the most beneficial, thus -
(1) If persons interested to the extent of one half or more demand a sale, the Court will decree a sale, unless the others can prove that there is some good reason why the property should not be sold.
(2) If any person interested (e.g. to the extent of one tenth only) demand a sale, and if he can show that a sale will be more beneficial, the Court may decree a sale.
(3) If any person interested demand a sale, the Court may decree a sale unless the other parties will buy his share at a valuation.
In all these cases the Court has a discretion, but the burden of proof lies on 'the minority in each case.
(f) 31 & 32 Vict. c. 40.