Guernsey Law Reports 2007–08 GLR Note 12
JONES v. LE VALLÉE
ROYAL COURT (Collas, Deputy Bailiff): July 27th, 2007
Land Law—co-ownership—termination—licitation—postponement
The parties were co-owners of their former home, each (with his or her heirs) owning an undivided half share in the property. They had also granted each other a life enjoyment over their respective halves, which was to be exercised jointly during their joint lives and after that during the lifetime of the survivor. Both agreed that licitation was the appropriate way to terminate the co-ownership and the plaintiff formally sought an order requiring it. The defendant maintained that the court had a discretion to postpone the commencement of the licitation to allow her time to raise the funds needed to buy the plaintiff’s equity in the property and should exercise it in her favour. The plaintiff denied that the court had any such discretion.
The sum needed by the defendant to buy out the plaintiff was £107,500 but if the defendant became the sole owner she would then have to take on sole responsibility for servicing the mortgage of £310,000. With a current income of only £30,000 and the possibility of obtaining only a small amount of maintenance through the Magistrate’s Court, she had no realistic prospect of raising sufficient funds in the foreseeable future.
Held: (1) At first impression, the court was of the opinion that it might well have a limited discretion to postpone licitation but, even if it had, the defendant (on whom the burden lay) had failed to satisfy it that she had a reasonable prospect of being able to raise the necessary funds to buy out the plaintiff, and the court would not therefore exercise in her favour any discretion it might have.
(2) There was an insufficient number of modern cases of licitation to be able to say that there was a normal length of time within which the court should order a licitation to commence. An appropriate period needed to be specified to meet the circumstances of each case. As here a number of complex matters remained to be resolved—the possibility that the defendant might yet agree to a private sale to a third party, the status of the mutual exchange of life enjoyments over the other’s share if there were to be a licitation (which would require legal argument and might not be resolved amicably), the re-housing of the defendant and the decision of the Magistrate’s Court in the maintenance proceedings—the defendant would be ordered to participate in a licitation within a period of five months.
2009
Law Report
None
Guernsey Law Reports 2007–08 GLR Note 12