B occupation rent 1 s 2333pla applies on an

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B. OCCUPATION RENT 1. S 233(3)PLA applies on an application for division and/or sale, ‘notwithstanding any rule to the contrary’ 2. No order for occupation rent unless Occupying CO is seeking accounting or compensation; The claimant CO has been excluded from occupation; or 12
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13 Claimant CO has suffered detriment because it was not practicable for him or her to occupy the land. C. ACCOUNTING FOR RENTS AND PROFITS 1. Common law said that a co-owner was not required to account to other co-owners for rents & profits received – equity said they were 2. Statute of Anne 1705 allowed co-owners to bring an action against a co-owner who received more than his share 3. Henderson v Eason (1851) held the statute referred to rents and profits received from a third party and not to fruits of co-owner’s own labour. If you co-own land, and solely grow fruit and make cash, its ALL yours! We assume this relates to s. 28A of the PLA. 4. It is assumed that this rule applies to other statutory provisions for accounting between co-owners for rents and profits, eg s 28A PLA. C. SECTION 28A PROPERTY LAW ACT ENACTED 1998 1. 28A. Liability of co-owner to account A co-owner is liable, in respect of the receipt by him or her of more than his or her just or proportionate share according to his or her interest in the property, to account to any other co-owner of the property. In this section, "co-owner" means a joint tenant, whether at law or in equity, or a tenant in common, whether at law or in equity, of any property. Note: This right to account can be exercised at any time during the co-ownership, not just on termination. C. ACCOUNTING FOR RENTS AND PROFITS: PLA PART IV, DIVISION 3 1. S 234: A co-owner of land or goods may apply to VCAT for an order for an accounting in accordance with section 28A, whether or not application is made for division & sale. 2. S. 234B: VCAT may make any order it thinks fit to ensure that a just and fair accounting of amounts received by co-owners in respect of the land or goods occurs. This includes ordering a co-owner who has received more than his or her share of rents and payments from third parties to account to the other co-owners for those payments. E. ADVERSE POSSESSION BY A CO 1. Common law unity of possession – no co-owner’s possession is adverse 2. But position altered by s 14(4) LAA When any one or more of several persons entitled to any land or rent as joint tenants or tenants in common have been in possession or receipt of the entirety or more than his or their undivided share or shares of such land or of the profits thereof or of such rent for his or their own benefit or for the benefit of any person or persons other than the person or persons entitled to the other share or shares of the same land or rent, such possession or receipt shall not be deemed to have been the possession or receipt of or by such last-mentioned person or persons or any of them but shall be deemed to be adverse possession of the land.
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