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Vcat a what might be claimed between co owners at the

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VCAT: A. What might be claimed between co-owners at the time that they want to end the co-ownership. The party not in agreement can apply to VCAT for orders that the land be sold and proceeds be divided (s225(2)(a)) OR can apply that the land be physically divided up between the co-owners (s225(2)(b)). Can apply for a combination of the two outcomes – sell up some and divide the rest (s225(2)(c)). In addition VCAT can order that there be compensation between the co- owners under s233(1)(a). VCAT can also order that there be an accounting for rents and profits under s233(1)(b) – but that section directs VCAT to s28a of the PLA. VCAT can order an adjustment of the interest – change the co-owner’s interest, maybe the land cannot be exactly physically divided s233(1)(c). Co-owners can claim the amounts payable to the other co-owners – a. improvements and other expenditures > maintenance of the property. Erecting a house. Insurance. Rates. Mortgage repayments. Compensation for damage caused by the use of one of the co-owners. Seek a proportion of costs from the other co-owners which coincides with the proportions of co-ownership. i. Under the old common law there was a complex rule that you could claim the lesser of expenditure or increasing in market value. Exception: if the other was claiming for rents and profits then they pay the greater of the two. S233(2)(d) makes clear that VCAT must take into account “the reasonableness of the amount spent” – indicates that we should perhaps look at expenditure rather than increases in market value. b. occupation rent > a fee for the rental privilege of living there paid by a co-owner. At common law you cannot ask co-owners to pay occupation rent. When the co-ownership is coming to an end a co-owner can claim the amount. Under the new legislation such a claim is permitted in limited circumstances s233(3)(a)-(c). (VLRC para 471) i. claim made by the occupying co-owner for improvements or other outgoings 14
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ii. Claim made for wrongful exclusion/ ouster. Occupying co- owner excludes the other they can claim under s233(3) (b). Need to show that when leaving the property you suffered detriment (cost to find new accommodation). c. profits and rents from third parties. i. Rents that might be received from tenants or profits made from the land (crops etc – businesses run from the land). ii. PLA s28(a) there has been a legislative ability to claim for rents and profits from the other co-owner. Co-owners must “account” to others for rents and profits. iii. That is where rent/profits is more than their share. iv. VCAT can now make these orders. Originally you could look at the unities and say that because you are all entitled to you the land wholly then there is no obligation to account to the other co-owner unless you had excluded the other co-owner from the land. If you had agreed for one of the co-owner would collect the rents and profits for distribution.
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