Forcing the Sale of Jointly Owned Real Property

S.66G Conveyancing Act NSW

S66G of the Conveyancing Act 1919 (NSW) (‘the Act”) provides a means for a disputing joint
owner of real property to bring Supreme Court proceedings for sale of the property. The sale is co-
ordinated and managed by Trustees for Sale.

Under the Act, the Supreme Court can:

“(1)......on the application of any one or more of the co-owners appoint Trustees...(for the
property) to be held by them on the statutory trust for sale or on the statutory trust for partition”.
In simple words, where a property is held in co-ownership the court may, on the application of any
one or more than one co-owner appoint trustees for sale of the property and division of the
proceeds. The Court will only refuse an application in special circumstances. Commonly the
proceedings are brought to confront a resistant co-owner with the consequences of his/her position.

Some examples where a co-owner has approached the court for relief:

• A business partnership has broken down,
• A bankruptcy trustee standing in the shoes of a bankrupt co-owner,
• Beneficiary of a Will – inherited property An example of a situation where a Section 66G
has been brought is where a property was jointly owned by a husband and wife which was
financed under a mortgage. The husband became bankrupt and the bankruptcy trustee made
a Section 66G application for sale of the property in the absence of the wife’s consent. In the
result, the Court granted the application and appointed the bankruptcy trustee as a 66G
Trustee for sale of the property.

Ruling from the grave. Testators sometimes try to ensure their wishes are fulfilled posthumously.
In such cases the courts have consistently declined to impose on-going property ownership on an
unwilling beneficiary. Typically the testator has omitted to consult with the beneficiary of his/her
testamentary intention that the property be retained.

Once the property has been sold, the money would then be held by the Trustee and distributed in
accordance with any order of the Court.