Inheritance Shared with Brothers - Lodge Claim with VCAT?

[Heleng]

Hi, my 2 brothers and I inherited my Mothers' home a few years ago. Due to some violence experienced by me I moved out about 18 months ago. I would like my 2 brothers who still live there to buy me out of my share. I spoke to a lawyer in 2012 who told me that because I had the title changed into our 3 names that I couldn't do anything and have to wait until they pass away to get my share of the home. I did some research and found the VCAT website on partition of co-owned land.

Can I lodge a claim to force the sale of our home with VCAT under Property Law? My brothers say they can't afford to buy me out, nor do they wish for me to buy them out because they do not want to leave. Both of them don't work at all and are living off the eldest brothers' savings. I feel like I've been held to ransom here and can't move on with my life and use my share to buy my own home like my Mum would have wanted me to. Surely there's something I can do.

Thanks

 

[Sarah J]

Hi Helen,

You may terminate a co-ownership in two ways. You may enter into a voluntary agreement (needs consent of all three co-owners) or by application to VCAT for a partition or sale and division of proceeds order: Property Law Act 1958 (Vic) s 225. VCAT has power to order either sale, physical division of land and property ("partition") or a combination of sale and partition: PLA s 228. In doing so, VCAT may make supplementary orders for other matters: PLA Division 2.

VCAT must make an order for sale unless it considers it more just and equitable to partition the land/property. In considering this, VCAT will take into account:
- Nature of the land;
- Practicality of physical division;
- Relationship between the co-owners;
- Any particular attachment to the land/property by any of the co-owners.

For orders to sell, VCAT may order a public auction to be held (market conditions may be taken into account for when to sell). VCAT may also postpone the order for a period of time to allow the other co-owners time to buy your share in the land/property, should they request this.

VCAT may further make an order for accounting (compensation, reimbursement, adjustment for interest, profits etc): PLA s 233. The section lists a number of factors VCAT will take into account, including:
- Any time spend not occupying the land and rent paid for alternative accommodation;
- Rents, surcharges, mortgage repayments, fees relating to maintaining the land/property;
- Any damage caused by any co-owner to the land/property;
- Any improvements to the land/property made by any co-owner.

VCAT may further make an order for division of proceeds from sale, where an order for sale is made. There are some cases relevant to division of proceeds (+ accounting), they're easy to find on the internet if you search for them. This may assist you: some cases.

VCAT information and online application for property (and water) matters: http://www.vcat.vic.gov.au/disputes/joint-property-and-water/forms

 

[Heleng]

Thank you very much Sarah J, you have been most helpful