When people jointly own property—whether as business partners, family members, or spouses—disputes can arise when one party wants to end the co-ownership. South African law provides a solution in these cases: Actio Communi Dividundo, a legal remedy that allows for the division of co-owned property when co-owners cannot agree.

This article explains Actio Communi Dividundo, its legal requirements, how South African courts apply it in various disputes, and how it impacts joint ownership of property in South Africa—including whether a jointly owned property can be sold by one owner.

What Is Actio Communi Dividundo?

Actio Communi Dividundo is a common-law remedy that allows a co-owner to legally terminate co-ownership of property. This means that:

• No co-owner can be forced to remain in co-ownership against their will.
• Any co-owner can apply to the court to divide the property.
• The court has broad discretion to determine how the property should be divided fairly.

This legal mechanism is frequently used when people cannot agree on how to split property, particularly in cases of:

• Divorce (when spouses jointly own property).
• Inherited estates (when multiple heirs own a property together).
• Business disputes (when business partners own shared assets).

Types of Property in Co-Ownership Disputes

The property in question can be classified as:

Movable Property – Includes vehicles, jewellery, machinery, artwork, and digital assets (such as NFTs).

Immovable Property – Includes real estate, such as houses, apartments, warehouses, and farmland.

When co-owners cannot agree on how to divide these assets, they may need to approach the court to enforce a fair division.

Requirements for Applying Actio Communi Dividundo

A co-owner can apply to the court for Actio Communi Dividundo if:

• They share joint ownership of the property.
• They wish to end the co-ownership.
• Physical division of the property is impossible or impractical.
• The co-owners cannot reach an agreement on how to divide the property.

If these conditions are met, the court can decide how to divide the property in the fairest way possible.

Can a Jointly Owned Property Be Sold by One Owner?

One of the most common questions in property disputes is:

"Can a jointly owned property be sold by one owner?"

The short answer is no—a co-owner cannot sell a jointly owned property without the consent of the other owners. If a dispute arises and one owner refuses to sell, the Actio Communi Dividundo application allows the court to order the sale and fair distribution of the proceeds.

How Courts Handle Property Division in Co-Ownership Disputes

Key Legal Precedents

South African courts have handled many cases involving Actio Communi Dividundo. Below are key rulings that illustrate how courts divide co-owned property:

1. Robson v Theron (1978) – Business Partnership Dissolution

A business partnership ended, and the co-owners could not agree on the division of property and goodwill (business value).

The court ruled that, where physical division is impossible, an asset must be sold, and the proceeds divided fairly.

2. N M v M M (2024) – Divorce and Joint Ownership of a Home

A wife applied to buy out her husband’s share of their jointly owned home.

The husband argued that division should wait until their divorce was finalized.

The court ruled that Actio Communi Dividundo is independent of divorce and can be applied before the divorce process is complete.

3. Z.I v W.I (2023) – Disputed Property Shares

A co-owner argued that the applicant should receive only 20% of the property’s value because she had not financially contributed to its purchase.

The court ruled in favour of equal distribution, confirming that financial contributions do not always determine ownership rights.

4. Crawford v Goodman (2022) – Universal Partnerships

The court ordered that co-owned property be sold and proceeds divided after a universal partnership dissolved.

This ruling confirmed that Actio Communi Dividundo applies to both traditional co-ownership and universal partnerships.

5. Marogoa v Marogoa (2023) – Inherited Property Dispute

Co-heirs of an inherited property could not agree on division.

The court ordered a public auction and equal distribution of proceeds, confirming that heirs cannot be forced into co-ownership indefinitely.

How Actio Communi Dividundo Affects Property with Outstanding Debts

Co-owners often disagree about financial liabilities, such as bonds or loans attached to jointly owned property. Actio Communi Dividundo can help resolve issues such as:

 The property to be sold, with proceeds used to settle debts before distribution.

• One co-owner wants to be released from financial obligations (e.g., mortgage payments).
• A co-owner refuses to contribute to maintenance or debt repayments.

• In such cases, courts may order:

1. The property to be sold, with proceeds used to settle debts before distribution.
2. One co-owner to assume full financial responsibility, compensating the other co-owners.

How Van Deventer & Van Deventer Inc. Can Help

At Van Deventer & Van Deventer Inc., our attorneys in Johannesburg assist clients with co-ownership disputes involving:

• Division of joint estates in divorce.
• Property disputes between business partners.
• Inherited property disputes among heirs.
• Financial liability disagreements in co-ownership.

If you are facing difficulties with joint ownership of property in South Africa, we provide expert legal guidance to ensure a fair and legally compliant resolution.

Van Deventer & Van Deventer Inc. - Attorneys Johannesburg

Actio Communi Dividundo is a powerful legal tool that allows co-owners to legally divide property when they cannot agree. Whether in divorce, business partnerships, or inheritance disputes, this remedy ensures fair asset division while preventing prolonged disputes.

If you need assistance with co-ownership disputes or require legal guidance on selling or dividing jointly owned property, contact Van Deventer & Van Deventer Inc. attorneys in Johannesburg.