Queensland Consolidated Acts

PROPERTY LAW ACT 1974 - SECT 38

38 Statutory trusts for sale or partition of property held in co-ownership

(1) Where any property (other than chattels personal) is held in co-ownership the court may, on the application of any 1 or more of the co-owners, and despite any other Act, appoint trustees of the property and vest the same in such trustees, subject to encumbrances affecting the entirety, but free from encumbrances affecting any undivided shares, to be held by them on the statutory trust for sale or on the statutory trust for partition.

(2) Where the entirety of the property is vested in trustees or personal representatives, those trustees or personal representatives shall, unless the court otherwise determines, be appointed trustees on either of such statutory trusts, but subject, in the case of personal representatives, to, their rights and powers for the purposes of administration.

(3) Where the entirety of the property is vested at law in co-owners the court may appoint a trustee corporation either alone or with 1 or 2 individuals (whether or not being co-owners), or 2 or more individuals, not exceeding 4 (whether or not including 1 or more of the co-owners), to be trustees of the property on either of such statutory trusts.

(3A) On such appointment under subsection (3) , the property shall, subject to the Trusts Act 1973 , section 90 , vest in the trustees.

(4) If, on an application for the appointment of trustees on the statutory trust for sale, any of the co-owners satisfies the court that partition of the property would be more beneficial for the co-owners interested to the extent of upwards of a moiety in value than sale, the court may, with the consent of the encumbrancee of the entirety (if any), appoint trustees of the property on the statutory trust for partition, or as to part of the property on the statutory trust for sale, and as to part on the statutory trust for partition, but a purchaser shall not be concerned to see or inquire whether any such consent has been given.

(5) When such trustees for partition have prepared a scheme of partition they shall serve notice in writing of the scheme on all the co-owners of full age, and any of such co-owners dissatisfied with the scheme may, within 1 month after service upon the co-owner of such notice, apply to the court for a variation of the same.

(5AA) If any of the co-owners is a person for whom an administrator has been appointed under the Guardianship and Administration Act 2000 for the property, the notice must be served on the administrator.

(5A) If any of the co-owners is an incapacitated person within the meaning of the Public Trustee Act 1978 , the notice must be served on the person charged by law with the management and care of the incapacitated person’s property, or if there is no person charged, on the public trustee.

(5B) Where any of the co-owners is a person not of full age or a person who cannot be found or ascertained, or as to whom it is uncertain whether the person is living or dead, the trustees may act on behalf of the person, and retain land or other property to represent the person’s share.

(6) In relation to the sale or partition of property held in co-ownership, the court may alter such statutory trusts, and the trusts so altered shall be deemed to be the statutory trust in relation to that property.

(6A) Without limiting the power of the court so to alter the statutory trusts, the court shall, unless for good reason the court otherwise directs, so alter the statutory trusts as to provide in the case of the statutory trust for partition that—

(a) any encumbrance which, prior to the appointment of the trustees, affected any undivided share shall continue to extend and apply to any such share; and

(b) any mortgage created for raising equality money shall rank in priority after any such encumbrance.

(7) Where property becomes subject to such statutory trust for sale—

(a) in the case of joint tenancy—a sale under the trust shall not of itself effect a severance of that tenancy; and

(b) in any case—land shall be deemed to be converted upon the appointment of trustees for sale unless the court otherwise directs.

(8) This section applies to property held in co-ownership at the commencement of this Act and to property which becomes so held after such commencement.

(9) This section does not apply to property in respect of which a subsisting contract for sale (whether made under an order in a suit for partition, or by or on behalf of all the co-owners) is in force at the commencement of this Act, if the contract is completed in due course, nor to land in respect of which a suit for partition is pending at such commencement if a decree for a partition or sale is subsequently made in such suit.