Co-ownership

Cameron Stewart
(thanks to Jim Helman and
Shae McCrystal errors are
mine)
(c) Cameron Stewart

Joint Tenancy
In a joint tenancy each of the joint tenants has
an entitlement to the whole property. There is
no distribution of any particular share of the
property to any of the joint owners and no
joint owner can say that any part of the
property belongs to that joint owner.
The 2 features that characterise a joint
tenancy and separate it from a tenancy in
common are:
The four unities
The right of survivorship
(c) Cameron Stewart

Unity of title
The interests of joint tenants must be
created in the same instrument or
dealing. It is not possible to create a
joint tenancy between co-owners who
acquire their interests by separate
instruments or dealings. The creation
of interests by separate instruments
or dealings results in the creation of a
tenancy in common.
(c) Cameron Stewart

Unity of title
The interests of joint tenants must be
created in the same instrument or
dealing. It is not possible to create a
joint tenancy between co-owners who
acquire their interests by separate
instruments or dealings. The creation
of interests by separate instruments
or dealings results in the creation of a
tenancy in common.
(c) Cameron Stewart

Unity of possession
This requires that the co-owners be
entitled to possession of the whole
property, to be enjoyed together with
the other co-owners.
There is no claim for any particular
part of the land.

(c) Cameron Stewart

Unity of time
This requires that the interests of all
joint tenants vest at the same time.
This is usually satisfied if the
interests are created at the same
time.

(c) Cameron Stewart

Right of survivorship
This is an essential feature of a joint tenancy. If there is no
right of survivorship then there cannot be a joint tenancy. If
a joint tenant dies then the property remains in the
ownership of the other joint tenants because they have
always been entitled to the whole property.
Rather than saying that a surviving joint tenant has acquired
the interest of the joint tenant who died, it is perhaps more
correct to say that the interest of the joint tenant who dies
has been extinguished. The interest of a deceased joint
tenant is no interest at all, and there is nothing that forms
part of the estate of the deceased joint tenant.
The right of survivorship in the surviving joint tenant cannot
be defeated by the joint tenant who dies leaving his or her
interest by will.

(c) Cameron Stewart

Corporations?
Section 25 of the Conveyancing Act
provides that Corporations can hold
interests as joint tenants. If the
company is dissolved then the right
of survivorship comes into effect.

(c) Cameron Stewart

Who dies first?

Section 35 Conveyancing Act provides
that where it is impossible to tell, the
older person dies first and the younger
dies second.
There are exceptions to the section.
Only applies to title to property.
Only raises a presumption, rebuttable by
evidence that the deaths occurred in a
particular order, not according to seniority.
Only applies where the death of the person is
known to have occurred, and is not presumed.
(c) Cameron Stewart

Who dies first?

In Hickman v Peacey [1945] AC 304 a
basement air raid shelter was blown up by a
high explosive bomb. At the time of the
explosion there were five persons in the
shelter as follows:(1) Mabel Price-Jones, 52, the occupier of the
house;
(2) her daughter;
(3) Elizabeth Sarah Parke, 70, housekeeper for
Randolph Grosvenor;
(4) Randolph Grosvenor, 73, the first testator; and
(5) Edward Grosvenor, 66, the second testator
(c) Cameron Stewart

Who dies first?

The difficulty in the case occurred because the
Will of (4) left property to (5) if he were
surviving at the date of my decease and also
to (3). The Will of (5) left property to (1), (2) and
(3) if they survived him.
The Court was asked to determine whether
under the English Law of Property Act 1925 the
deaths occurred in order of seniority. Cohen J
at first instance held that there was no evidence
that they died simultaneously and that they
must be presumed to have died in order of
seniority. The Court of Appeal reversed this
decision, holding that their deaths were
simultaneous
(c) Cameron Stewart

Who dies first?

The matter was then heard by the House of
Lords. The House of Lords held:
... that in the absence of such evidence (that is,
evidence to show whether any of the deceased had
survived the others) they had died in circumstances
rendering it uncertain which of them survived the
other or others within the meaning of s184 of the
Law of Property Act 1925 and that accordingly in
the administration of their estates by the executors
of the respective Wills, the younger of the deceased
should be deemed to have survived the elder.
An inference, drawn from the facts, that they died
simultaneously would not make the section
inapplicable and in any case would not be justified
on the facts disclosed.
(c) Cameron Stewart

Presumed dead?
Halbert v Mynar [1981] 2NSWLR 659
Charaus was made on presumption of death only.
The Grant stated Deceased presumed to have
died: On or after 7th June 1972.. It was necessary to
apply to the Court for leave to distribute the Estate
and for directions as to those parts of the Will that
should be complied with in those directions.
John Charaus was married once only to Emily
Charaus in about 1939 there being one child of the
marriage, Blanka Olga, born on 2 June 1945. Blanka
married Mirek Mynar on 3 April 1971.
On 7 June 1972, John Charaus and Blanka
disappeared and have not been seen or heard since.

(c) Cameron Stewart

Presumed dead?
Waddel L J found that s.35 did not apply where one of
the deaths is presumed under the Common Law. He
said:
It is unlikely that the legislature intended the Section to
determine arbitrarily the order of death of persons
whose deaths may have been separated by many
years.
As John Charaus and Blanka disappeared in June 1972
and Emily Charaus (Johns wife) died in October 1973, it
is difficult to see how the Court could have come to a
conclusion that he was presumed to have died between
June 1972 and October 1973 when there was no
evidence before the Court that he had died at all and
the Grant of Probate of his Will was made on the
presumption of death after a period of 7 years from
June 1972 elapsed.
(c) Cameron Stewart

Tenancy in common
In contrast to a joint tenancy, a tenancy in
common has the co-owners owning interests in the
land in proportion to their interest. If co-owners are
tenants in common in equal shares then they each
own a one half interest in the property.
If they own unequal shares then they own the
property in the proportions they are stated as
holding in the property. Eg: three quarters/one
quarter.
The share of a tenant in common is said to be an
undivided share. It is a separate share but not a
physically divided share.
(c) Cameron Stewart

Creation of Co-ownership
Before the Conveyancing Act 1919 the
common law presumed that a
conveyance to two or more persons
created a joint tenancy. This presumption
could be displaced by specific words
such as a one half interest to each of A
& B , to be divided equally to my five
sons equally
Rentoul v Rentoul [1944] VLR 205
(c) Cameron Stewart

Creation of Co-ownership
Equity preferred tenancy in common
Unequal contribution to purchase price
Unequal contribution to mortgage liability
Unequal contribution to business assets
the right of survivourship has no place
amongst merchants

Resulting Trusts
Equity follows the law on a 50:50 input
(c) Cameron Stewart

Creation
Section 26(1) of the Conveyancing Act
provides that:
In the construction of any instrument
coming into operation after the
commencement of this Act a disposition of
the beneficial interest in any property
whether with or without the legal estate
to or for two or more persons together
beneficially shall be deemed to be made
to or for them as tenants in common, and
not as joint tenants.
(c) Cameron Stewart

Delehunt v Carmody
In Delehunt v Carmody (1986) 161 CLR 464
Francis Carmody and Ethel Delehunt
contributed equally to the purchase price of
a property that was registered only in the
mans name. They agreed that the land
would be owned in equal shares and that at
some time in the future it would be put in
both names. The matter came before the
Court after Francis Carmody died intestate
and letters of administration were granted
to Heather Carmody, his estranged wife.
(c) Cameron Stewart

Delehunt v Carmody
At first instance Wooton J held that
there was a trust and that Francis
Carmody held the property upon
trust for himself and Ethel Delehunt
as joint tenants in equity. On appeal,
the Court of Appeal disagreed and
found that there was a trust but that
it was a trust for the parties in equal
shares as tenants in common.
(c) Cameron Stewart

Delehunt v Carmody
The matter then came before the High
Court to consider the question that
the Court of Appeal erred in holding
that s.26 of the Conveyancing Act
1919, as amended (NSW) displaced
the equitable presumption that where
two persons advance equally the
purchase monies for a property they
hold as equitable joint tenants.
(c) Cameron Stewart

Delehunt v Carmody
Gibbs CJ:
It would be indeed surprising if the rules of
equity required the courts to follow a rule
of the common law that no longer existed
and in doing so to reach a result which
equity generally tried to avoid. However
the doctrines of equity are not so inflexible.
If equity follows the law, it will follow the
rules of law in their current state.
(c) Cameron Stewart

Real Property Act 1900

100Registered co-tenants
(1) Two or more persons who may be
registered as joint proprietors of an estate
or interest in land under the provisions of
this Act, shall be deemed to be entitled to
the same as joint tenants
Inconsistency?
registered as joint tenants or registered as
joint proprietors
(c) Cameron Stewart

Rights between Co-owners

Right to Possession
Because co-owners have unity of possession,
each is entitled to occupy the whole land and
there is no concept of trespass by one coowner against another. However, if one coowner ousts the other co-owner (and we will
see what this means later) such that they
deny a co-owners right to possess the
property, they can bring an action in trespass
seeking repossession of the property claiming that they have been ejected.
(c) Cameron Stewart

Rights between Co-owners

It also follows that one co-owner cannot grant a
right of possession to another person that would
exclude the right to possession held by all the
other co-owners. So if for example one co-owner
grants a lease, this would not prevent the other
co-owners from exercising their right to
possession unless they were also parties to the
lease. In this situation the co-owner has only
given the tenant the right of possession that they
themselves have and that is a right to
possession which is shared with the other coowners.
(c) Cameron Stewart

Rights between Co-owners

Right to Value of Repairs /
Improvements
Where one co-owner voluntarily
undertakes repairs or improvements to
a jointly owned property they cannot
force the other co-owners to contribute
to those repairs or improvements
unless they have reached agreement
on the repairs or improvements first.
(c) Cameron Stewart

Rights between Co-owners

In Leigh v Dickeson (1884-1885) LR 15 QBD 60, a co-owner
who was in possession of jointly owned property expended
monies on repairs. The co-owner then sought a contribution to
the cost of those repairs from his co-owner. The court refused
to grant the request finding that there was no duty on coowners to repair their property and that they could, if they
chose, allow the property to decay. The court said that if one
co-owner makes a purely voluntary payment, then the other
co-owners are under no legal obligation to reimburse them
even though the value of their property is increased. To find
otherwise would allow one co-owner to force the other to
expend monies against his or her will. Note Lindley J at 69:
Tenancy in common is a tenure of an inconvenient nature,
and it is unfit for persons who cannot agree among
themselves.
(c) Cameron Stewart

Rights between Co-owners

Cotton, LJ:
As to the claim for improvements, it has been urged that no
tenant in common is entitled to execute improvements upon
the property held in common, and then to charge his cotenant in common with the cost. This seems to me the true
view, and I need not further discuss the question as to
improvements. As to the question of repairs, it is to be
observed that when two persons are under a common
obligation, one of them can recover from the other the
amount expended in discharge or fulfilment of the common
obligation; but that is not the position of affairs here: one
tenant in common cannot charge another with the cost of
repairs without a request, and in the present case it is
impossible even to imply a request.

(c) Cameron Stewart

Partition and adjustment

The only remedy for the improving coowner would be to apply for an order of
partition forcing the sale of the property
The court of equity would intervene in
order to make an adjustment of the
property in favour of the co-owner that
spent money improving the property.
However, while the co-ownership exists,
there is no remedy and no right to get a
contribution towards the cost of
improvements without an agreement
beforehand.
(c) Cameron Stewart

Equity is defensive
The High Court in Brickwood v Young (1905)
2 CLR 387 per Griffith CJ at 396 noted that
the equity operates defensively ie it only
arises at the end of the co-ownership as a
defence against the other co-owners
asserting their rights to their pre-existing
legal share without adjustment. Equity
steps in to prevent the co-owners who did
not contribute to the value of the repairs
and improvements from taking the
increased value of the property without
having contributed to the cost of those
repairs and improvements.
(c) Cameron Stewart

Equity is defensive
Brickwood v Young (1905) 2 CLR 387 per
Griffith CJ at 396:
The principle appears to be that the making of
permanent improvements by one tenant in
common in sole occupation gives rise to an
equity attaching to the land, analogous to an
equitable charge created by the owners for the
time being, but enforceable only in the event
of partition or a distribution of the value of the
land amongst the tenants in common. There
can be no reason why such a charge should not
run with the land in favour of purchasers from
the person originally entitled to it.
(c) Cameron Stewart

Equity is defensive
In Brickwood co-owned land was compulsorily
acquired by the State. In distributing the value
of the estate one co-owner of the property
sought contribution from the other 3 co-owners
for the value of improvements done by that coowners predecessor in title:
Ie A B and C own land; B does renovations. B
sells his portion to D. On sale of the whole or
partition, D can get a contribution for the value
of the improvements carried out by B. Why
given that D didnt pay for them? Because
presumably the price D paid for the land was
increased by the value of the improvements that
B did so D in effect purchased Bs equity
(c) Cameron Stewart

What does the improver

get?
Upon sale of the property subject to
co-ownership, the improving owner is
entitled to recover either the cost of
the improvements undertaken to the
property OR the increased value of
the land attributable to those
improvements whichever is the
LESSER amount
(c) Cameron Stewart

Boulter v Boulter
Boulter v Boulter (1898) 19 LR (NSW) Eq 135 per Simpson CJ
at 137:
Where an owner of an undivided interest in land spends
money on improving the property so that on a sale .. it
fetches an enhanced price, a Court of Equity in dividing the
proceeds of sale will not allow the other co-owners to take
their shares of the increased price without making an
allowance for what has been expended to obtain that
increased value This course of action cannot inflict any
injustice on the other co owners, for it takes nothing out of
their pockets, it only prevents them putting into their pockets
moneys obtained by the expenditure of another person,
unless they recoup him such expenditure. In no case can the
co-owner who has improved the property obtain more than
his outlay, though such outlay may have trebled the value of
the property. And, on the other hand, the increase in the
price obtained is the limit of what he can receive, though his
actual outlay may be far larger.
(c) Cameron Stewart

McMahon v Public Curator of

Queensland
McMahon v Public Curator of Queensland
[1952] St R Qd 197 Macrossan C.J. referred
to Leigh v Dickeson and said:
... It is clear, I think from this, that the
amount to which a co-owner making
improvements may be entitle against
another co-owner in taking the accounts in a
partition action, is limited to the actual cost
of the improvements, and if the present
value of the increment to the property is less
than the actual cost of the improvements, he
is further limited to that present value.
(c) Cameron Stewart

Squire v Rogers
Squire v Rogers (1979) 39 FLR 106 : Squire and Rogers
were co-tenants of land in Darwin under a perpetual
lease. The lease required that in one year there be
buildings on the land of a total value of not less than
$15,000.00. In June 1963 Rogers left Australia and
voluntarily left the land in the occupation of the Squire
with the expectation that Squire would spend the
money necessary to comply with the covenant
contained in the lease. Squire did so by constructing
flats and other improvements and carried on a
business of providing accommodation in flats, rooms
and caravans and by letting caravan sites. Much was
destroyed by Cyclone Tracy but then Squire rebuilt.
Rogers returned to Australia in 1976 and commenced
proceedings for the sale of the estate of the appellant
and the respondent and that an account be taken.
(c) Cameron Stewart

Squire v Rogers
The defendant estimated that he had spent
$100 000 on the property over the course of
the 14 years. An independent valuation
estimated that the improvements had only
improved the value of the land by $15 000 so
when the property was sold, he was entitled to
take $15 000 out of the proceeds before the
remainder was divided between the two coowners. He received nothing for his other $85
000 from his co-owner. There is also an
interesting aspect of this case relating to rents
and profits from co-owned land which we will
return to when we look at entitlement to rents
and profits.
(c) Cameron Stewart

Mortgage Payments
Improvements are not limited to physical improvements and can
include mortgage payments because mortgage payments
increase the equity in the property and the amount available for
distribution
HW if you want mortgages payments on dissolution then you
must do equity
In Ryan v Dries [2002] NSWCA 3 (6 February 2002) the Court of
Appeal considered issues of accounting in respect of occupation,
accounting in respect of repairs, maintenance, and outgoings,
including mortgage repayments. Hodgson JA at [70] said:
If a co-owner makes a claim for contribution to mortgage
payments in reliance purely on a legal right, with no reliance on
equitable principles, then it would seem that the co-owner is not
seeking equity and is not required to do equity. However, if the
co-owner does rely on equitable principles in making such a
claim, in my opinion the co-owner is seeking equity and is
required to do equity, no less than if allowance for
improvements was being sought
(c) Cameron Stewart

Occupation Rent
If one co-owner goes into occupation
of the property they are not obliged
to pay rent or an occupation fee to
the other co-owners. This is because
co-owners are seised of the entire
estate and each has a present right
to possession of the whole property
(along with any other co-owner who
chooses to occupy it as well).
(c) Cameron Stewart

Occupation Rent
Luke v Luke 36 SR (NSW) 310, John Luke died
leaving his estate subject to a life tenancy in
favour of his widow with the remainder to his
two daughters in equal shares as tenants in
common. John Lukes widow died in 1915 and
Laura, one of the daughters, died in 1920. From
that date until the trial in 1936, Ada (the other
daughter) occupied the property. In 1929, Ada
was removed as a trustee of the estate and the
Public Trustee appointed. In 1932, Ada Luke
became a bankrupt and in the case before the
Court an order was sought that the Public
Trustee be authorised to sell the real estate and
that Ada Luke be charged an occupation rent.
(c) Cameron Stewart

Occupation Rent
Long Innes C J in Eq. cited the matter as
follows:
The conclusion to which I have come is that the
contention that the defendant Ada Luke
should be charged with an occupation rent in
this case is neither supportable on principle,
nor established by authority, and that , in fact,
the balance of authority is to the contrary.
I make the order for sale as asked, and declare
that the defendant Ada Luke is not chargeable
with an occupation rent.
(c) Cameron Stewart

Occupation Rent
Three exceptions
the co-owners have contractually agreed amongst
themselves that the occupying co-owner will pay a
fee;
One of the co-owners has been excluded from the
property through an ouster
One of the co-owners has voluntarily expended
money on repairing or permanently improving the coowned property and has been in occupation during
that time. If they seek a contribution from the other
co-owners towards the repairs or permanent
improvements, the extent of this contribution will be
reduced by an occupation fee covering their
occupation of the property
(c) Cameron Stewart

Ouster
An ouster will occur when one co-owner
physically excludes or threatens to
physically exclude another of the coowners. An ouster must be wrongful and
suggest that there is a denial of the
excluded persons title and right to
possession of the property. Exclusion will
amount to ouster where one party leaves
due to violence or threats of violence; or
where one party asserts that the other has
no proprietary interest in the property. No
ouster occurs where one co-tenant makes
life difficult or uncomfortable for the other
(c) Cameron Stewart

Ouster
Biviano v Natoli (1998) 43 NSWLR 695 Ms Biviano
and Mr Natoli bought a house together in 1979 and
lived in the house until October 1992. In Oct 1992
they had an argument, there were threats made,
and Mr Natoli left. Ms Biviano then got an
Apprehended Violence Order under the Crimes Act
1900 which prevented Mr Natoli from occupying
the premises. Mr Natoli subsequently took court
action seeking the sale of the house and an
occupation rent from the time of the AVO. Ms
Biviano defended the action claiming a. that she
was the full owner of the house (denying Mr Natoli
was a co-owner) and in the alternative b. that
there had been no ouster entitling him to an
occupation fee.
(c) Cameron Stewart

Ouster
The court dismissed the first argument and found
that they were tenants in common of the fee
simple. With respect to the issue of ouster, the
court said:
The true nature of ouster is that it constitutes a
trespass by one co-tenant of another co-tenants
rights in respect of the property an express
denial of the title and right to possession of fellow
tenants brought home to the latter openly and
equivocally would clearly amount to an ouster
(per Beazley JA at 701 (Powell JA and Stein J in
agreement)
(c) Cameron Stewart

Ouster
The court held that court order AVO did not constitute
ouster. Because Mr Natoli was not wrongfully excluded
from the property but was excluded pursuant to a statutory
order, Ms Biviano had not trespassed on Mr Natolis rights
to the property. His lack of access to the property came
through a lawful AVO
The court found that if Mr Natoli could not lawfully have
sustained an action in ejectment against Ms Biviano, she
could not have wrongfully excluded him.
However there was an ouster in the case. The court found
that an ouster occurred when Mr Natoli lodged his claim for
sale of the house and she defended the action by alleging
that he had no title to the property. This action amounted
to a denial of his proprietary interest in the property and
was an ouster so she had to pay an occupation rent for
the period from the date of the court action.

(c) Cameron Stewart

Claim for mortgage

payments
Foregeard v Shanahan (1994) 35 NSWLR 206 Coowners of 50% of land.
She was in sole occupation for 9 years (judge notes
she installed her paramour).
During that time she made all the mortgage payments
on a jointly owed mortgage.
He sought a partition to sell the house.
She raised 50 % of the mortgage payments as a
defensive equity in partition.
Her defensive equity was reduced by 50% of the rent
the property would have fetched over those nine years
as an occupation fee this amount exceeded the
mortgage payments he sought the extra
He was denied on the basis that the occupation rent
claimed cannot exceed the defensive equity raised.
(c) Cameron Stewart

Claim for mortgage

payments

Headnote says:
(2) (By Meagher JA with whom Mahoney JA agreed; Kirby P dissenting) In common law partition and
similar cases, the rights of one co-owner against another co-owner of real property, when one
has been in occupation and the other has not, include:
(a) the payment of an occupation fee by the co-owner in possession but only where:
(i) the other co-owner has been excluded from occupation; or
(ii) the owner in occupation claims an allowance in respect of improvements
(b) the entitlement to an allowance in favour of a co-owner in occupation who effects
improvements (which is more than mere repairs and maintenance) is for the lesser of the
value of the enhancement of the property and the cost of effecting the repairs, where the
non-occupying owner seeks an occupation.
(3) Accordingly, in determining the rights of joint tenants for the purposes of making orders
pursuant to the Conveyancing Act 1919, s 66G, where one owner has left the jointly owned
property but has not been excluded from occupation:
(a) insurance premiums and expenses for pest control incurred by the occupying co-owner
cannot be claimed as improvements which are recoverable from the other owner;
(b) an occupation fee should be charged to any occupying owner but the fee should not
exceed the value of improvements made by the occupying owner; and
(c) an allowance should be made in favour of the owner making mortgage repayments, water and
council rates, but such allowance arises from a claim for contribution for payments made by
one debtor of a debt jointly owed and not because of the co-ownership of real estate.

(c) Cameron Stewart

Calculation of occupation
fee
What are you paying an occupation fee for? The
occupation fee is to occupy the portion of the
property that the co-owner does not own. So, if
one co-owner has 50% of the property, then
they have to pay half the value of the
occupation (because you dont have to pay to
occupy your half). Equally, if the co-owner owns
1/3 of the house, then they have to pay an
occupation fee for their occupation of the other
2/3 of the property. An occupation fee is
generally calculated by reference to the open
market rental for the property So, if a coowner owns 60% of the property, their
occupation fee will be 40% of the market rent.
(c) Cameron Stewart

Rents and Profits

In equity, an account for profits lies as part of a
suit for partition.
There is also an argument that the equity court
can still exercise an inherent jurisdiction for an
account between co-owners. If this jurisdiction still
exists then the court can order only an account of
those profits received from third parties. The fact
that one co-owner has had a greater benefit from
actual occupation of the property does not found
an action.
In an action for an account of profits, a claim for
the cost of improvements will be dealt with by the
court making an order for the whole of the cost of
the improvements made to earn the income.
(c) Cameron Stewart

Rents and Profits

The general rule is that each coowner is entitled to share in the rents
and profits of the property in
accordance with the size of their
respective shares in the property.
(1/3 share = 1/3 rents and profits).

(c) Cameron Stewart

Rents and Profits

Rees v Rees [1931] SASR 78, four
brothers owned a farm in equal shares as
tenants in common. Two of the four
brothers farmed the land and sought an
order that they were entitled to the whole
of the produce from the land and the
money derived from that produce and
that they were not liable to account for
any portion thereof to the defendants.
(c) Cameron Stewart

Rents and Profits

The point raised by the defence in the present action;
that in farming the land the plaintiffs did so as trustees
for themselves and the defendants, is dealt with in the
note in Lindley on p. 37, nor can one co-owner, by
leaving the management of the property in the hands of
the other, impose upon him an obligation of a fiduciary
character. The authority cited for this proposition is
Kennedy v de Trafford, [1897] A.C. 180 (see especially
per Lord Herschell at p. 189), which is cited by Collins
M.R. in In re Biss, [1903] 2 Ch. 40, at p. 57, for the
statement that tenants in common do not stand in a
fiduciary relation to each other. There is nothing in the
circumstances of the present case giving rise to any such
relationship concerning the management of the farm or
the produce thereof, and it seems clear that the plaintiffs
were entitled to the declarations and order for which
they asked.
(c) Cameron Stewart

Rents and Profits

Back to Squire v Rogers (1979) 27 ALR 330. - The plaintiff
sought an account of the rent earned from structures built:
The court agreed with claim for rent but if one party
voluntarily improves the land, and those improvements
earn rents or profits, you are only entitled to those rents
and profits IF you are prepared to pay for a share of the
improvements (per Deane J (Brennan and Forster JJ in
agreement) at 348):
In my view, [the plaintiff] is only entitled voluntarily to
adopt the benefit of the improvements [the rents and profits]
by claiming and receiving one-half of any profit resulting
from their use at the price of being liable to contribute to, or
make an allowance in respect of, their cost over and above
the amount included in the restricted allowance to which the
defendant was independently entitled to on partition or sale.
If she accepts the benefit of the profit earned, she must bear
her share of the burden of earning it.
(c) Cameron Stewart

Rents and Profits

Conclusion: the plaintiff couldnt be made to pay for the
improvements beyond the fact that the defendant got a
$15 000 property adjustment to account for the
increased value of the land (remembering that he spent
$100 000);
She could not then also seek to collect the rent and
profits that flowed from the improvements.
Plaintiff was entitled to a one-half share of the rent from
the caravans for 14 odd years because the caravans
stood on unimproved land BUT she wasnt entitled to a
share of the rent from the boarding rooms that the
defendant had constructed unless or until she forked
out for the cost of building them.

(c) Cameron Stewart

Rates
Section 560 of the Local Government
Act provides that co-owners are
jointly and severally liable for the
payment of rates. Also applies where
there are lessees.

(c) Cameron Stewart