“Shared Walls, Broken Trust: The Power of Injunctions in Resolving Co-Owner Disputes”

Himethma Perera

“Shared Walls, Broken Trust: The Power of Injunctions in Resolving Co-Owner Disputes”

By Himethma Perera

“Co-ownership arises when certain persons concurrently enjoy the right to possess and utilize entire property, with ownership interests that may either be shared jointly or held separately.”

-Edward Burn and John Cartwright, Cheshire, and Burn’s Modern Law of Real Property (19th edn, OUP (2018)- 

In land law the concept of co-ownership can be divided into two parts. One is joint tenancy and the other one is tenancy in common. In joint tenancy, each and every co-owner equally and entirely entitled to the whole land. Cases like Burton v Camden LBC (2000) EWCA Civ 12343, Wright v Gibbons (1949) 78 CLR 313 (HC of Australia) depicts the concept wisely. Because of the right to survivorship, when a co-owner dies the other co-owners who share the property own his shares too. When come into tenancy in common the situation changes. There is no survivorship so shares pass to the heirs or beneficiaries according to the will. Co- owners can hold equal or unequal shares that are undivided but owns equal access and rights over the property.

In my opinion this occurs when one co-owner tries to interfere with the rights of others. Hence, I think it will become more interesting if we talk about several disputes through some case laws. When parties contribute unequally in financial matters e.g., – Jones v Kernott (2011) UKSC 53 UK. Disagreements on sale and division proceeds e.g., – Malayan Credit Ltd v Jack Chia – MPH Ltd (1986) AC 549. When one co-owner is excluding from using the property e.g., – Dennis v McDonald (1981) EWCA Civ J1201-1. When co – owners file for partition e.g., – Re Pavlou (A Bankrupt) (1993) 1 WLR 1046.

“Every problem has a solution.” This is a famous that we use in everyday life. Like that in civil law matters like above, an injunction can be known as a powerful remedy.

Just because it says so above, I think it is important to analyze the role of an injunction as a remedy. Even though Lord Justice Donaldson stated that injunctions can be defined as nuclear weapons of law in Bank Mellat v Nikpour (1985) FSR 87, it is more and more confirmed. An injunction in the sense, an order issued by the court by ordering to do some action or prevent any action in the name of justice and equity.

We can find out that there are different types of injunctions. We will see what are they. One is Preventive injunction which prohibits a party from doing harmful actions and maintains the status quo. In the case Weinberger v Romero-Barcelo, 456 US 305 (1982) a preventive injunction was given. Second one is Mandatory injunction. This asks the relevant party to take some action. This is known as the most demanding injunction. Third one is Temporary Restraining Order (TRO). This is a short-term order released without a notice to stop the harm until a temporary injunction releases e.g. – Los Angeles Unified School District Case (1981). Next one is Temporary injunction or Preliminary injunction. These injunctions are issued to prevent causing any harm in the time period of after hearing but before giving the final decision. Main focuses to prohibit unnecessary and irreparable harms e.g., -W.W. Williams Co. v Google, Inc., (2013). The last one is Permanent injunctions. A final court order providing long-term relief when monetary damages are inadequate e.g., – eBay inc. v Merc Exchange (2006).

According to my opinion, it is not enough to know about what does co-ownership means and what an injunction is. It is really important to know why and for what injunctions are used in co-ownership matters. It will be clearer and easier to understand if I show and describe them by taking case laws as practical examples. The cases of Jones v Kernott (2011) UK and Swartzbaugh v Sampson (1936) California, USA injunctions are used to prevent one co -owner from blocking another’s access to the property. In the cases of Wright v Gibbons (1949) 78 CLR 313, Delfino v Vealencis (1980)and Malayan Credit Ltd. v Jack Chia-MPH Ltd. (1986) injunctions are used for the purpose of stopping a co-owner selling the co-own property without consent of others. When a co-owner tries to evict the other co-owner without a proper legal process an injunction took place in the cases of Evets v Evets (2001), Om Prakash v Mishri Lal (2017) and Henderson v Eason (1851). In the case of Stack v Dowden (2007) UK co-owners use injunctions because their other co-owners started constructing or renovating buildings without the consent of others. An injunction was issued in the cases of Perera v Silva (1913), Bernard v Josephs (1982) to maintain the status quo or protect the rights of appellants until the proceedings done.

So far, we all know injunctions were used in different cases for different reasons. But it is worth continuing to analyze the facts through Sri Lankan cases. So, we will go through several landmark cases of co-ownership in Sri Lanka.

First case is Government Agent Kalutara v Gunaratna (1968) NLR 58. In here two co-owners collectively used land for manufacture arrack. One co-owner applied license to continue this but the other one objected. So, court applied an injunction saying no co-owner has the right to use the common property without the consent of the other. Court held that only if the other party had consent and no objections other c-owner’s actions were permissible.

Second case is Halahakone v Fernando (1956)59 NLR 208. In this case the two co-owners had a coconut desiccating mill. But one co-owner excluded other from the possession and used the mill for his own profit, so the excluded co-owner applied for an injunction. Then the court held that the excluded co-owner is entitled to have a share of the profit since the profits of a common property should be derived.

Third case is Vaz v Hanifa (1948) 49 NLR 286. In this case, the property was leased to the defendant without the consent of all the co-owners. Later, co-owners sold the property to the plaintiff. So, court called for an injunction saying that the lease was not valid as it is done without the consent of all the co-owners. Court held that the lease was only valid for the undivided share of the co-owner who leased the property. Not for the whole property.

The last case is Silva v Silva 6 NLR 225 (SC). In this plaintiff and the defendant had shared property. Plaintiff started building a house in the land without the consent of the other. So, the court claimed an injunction saying that in a co-ow land one can’t do unauthorized constructions without the permission of others. Court dismissed the plaintiff’s claim for damages, ruling that the defendant had reasonable grounds for seeking legal restraint.

Since we talked about Sri Lankan co-ownership cases above, it will be a pro point if I talk about the Sri Lankan context in taking an injunction through the relevant statutes. In the civil procedure code of Sri Lanka, whole chapter 48 was dedicated to the topic injunctions. In that section 662 describes the procedure of applying an injunction. It says if someone needs an injunction, they must apply a petition that includes affidavit stating the facts supporting the request. Then section 663 talks about disobeying an injunction, section 664 talks about notifying the opposing part, section 665 talks about injunctions against corporations and public bodies, section 666 talks about modifying or cancelling an injunction and section 667 talks about compensation for wrongful injunctions respectively. Next section 54 of the Judicature act No 2 of 1978 vested power on courts to issue injunctions to prevent breaches of contracts and wrongful actions. Under this injunctions can be temporary (until the case decided) or permanent (as an attachment of the final judgment) regarding the consequences of the cases. Also, the Partition act No 21 of 1977 provides the right way of partitioning and selling a co-own property.

Even though it describes a lot about injunctions in co-ownership, still the most important part is missing. To apply for an injunction, applicant must know what are the pre requirements that he should fulfill to obtain an injunction. There are few requisites available. So, we will see what are they. Firstly, there must be a prima facie case. Means there must be clearly showing strong evidences to support to the claim that shows strong likelihood to win. By referring to Santosh Promoters Pvt.Ltd. v Intrasoft Technologies Ltd. (2016) Second one is balance of convenience. Before granting an injunction court consider about both parties situations. In there if the court find out that granting an injunction could cause greater hardship to the defendant than the hardship which applicant faced, then the court do not grant an injunction. The case Shelfer v City of London Electric Lighting Co. (1895) can be known as one of the best example to explain the concept. Third requisite is irreparable harm. Here applicant must show that he will suffer from harm which cannot be adequately made up if an injunction is not granted. Can clearly see the usage of given concept through the case of Swati Bhatia v Lalit Upadhyay Shastri (2018). Fourth requirement is clean hands doctrine. This means applicant must have acted fairly to get a court order like an injunction. Court will consider if the applicant held clean hands before granting an injunction. Even though he has fulfilled all the other requirements to apply for an injunction but have acted wrongly, they will not grant it. Readers can have a wise idea about the concept by reading the case Hong Kong Bank of Canada Ltd. v Wheeler Holdings Ltd. (1993). In my point of view, when we read this paragraph which is basically talks about the prerequisites of obtaining an injunction, there is something that we all can understand easily. That is to succeed getting an injunction an applicant must prove and fulfill all of the above.

As we come into the concluding session, I would like to express my opinions and analyze the facts about injunctions as a remedy for disputes in co-ownership matters. As we all can clearly see co-ownership disputes are common. But an injunction is a powerful weapon to protect co-owner’s rights. However, when we go through the given information, we can say that courts carefully assess each and every case, considering factors like balance of convenience and irreparable harm, which I would like to consider as smart and pro practices. Especially when regarding a doctrine like “clean hands” we can see that fairness and equity are already protected which can also know as a good thing. Last but not least simply I would like to conclude explaining my opinions saying that it is always important to maintain clear hands because we never know either we will become a co-owner  or will have to go for a court for a case like this one day.