Queensland Consolidated Acts
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PROPERTY LAW ACT 1974 - SECT 38
Statutory trusts for sale or partition of property held in co-ownership
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.
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
(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
(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.
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
(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
(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.
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