Can a joint tenant force the sale of a property?

You asked the classic question buyers and co-owners in Melbourne often face: can a joint tenant force the sale of a property. In everyday terms, joint tenancy means two or more people own the whole property together with an equal interest, and if one dies the survivor takes the lot through the right of survivorship. Tenancy in common means each person owns a defined share that forms part of their estate.

The Short Answer

Yes, a joint tenant in Victoria can start a process that leads to sale. The mechanism is an application to VCAT under Part IV of the Property Law Act 1958 asking for orders to sell the land and divide the proceeds, or to divide the land if division is practical. The Tribunal's powers are broad, and the key test is what is just and fair.

Joint Tenants Versus Tenants in Common, in Practice

Why does the manner of holding matter. Because it shapes your options.

• Joint tenants: equal interests, survivorship on death, neither can gift their interest by will. You can still seek VCAT orders as a co-owner.
• Tenants in common: defined shares, no survivorship, each can sell or bequeath their share, still subject to VCAT's power over co-owned land.

Before You Rush to VCAT: Low Friction Options

1. Negotiate and Document the Exit

Most disputes resolve with an agreed buyout or sale. A written co-ownership agreement or simple variation can set out valuation method, timeframes, sale channel and who pays what. This saves time and cost.

2. Sever the Joint Tenancy to Tenants in Common

If strategy or estate planning calls for it, a joint tenant can sever the joint tenancy without the other's consent by lodging a unilateral transfer, subject to notifying co-owners and any mortgagee's requirements. Severance does not sell the property, but it clarifies shares and can make buyouts or court orders cleaner. Land Use Victoria recognises unilateral severance and has published process guidance.

When VCAT Steps In

The Legal Footing

Part IV of the Property Law Act 1958 applies to all co-owned land in Victoria and defines co-owner to include joint tenants and tenants in common. That opens the door for a joint tenant to apply.

What VCAT Can Order

• Sale of the land and division of the proceeds
• Physical division, for example splitting a large parcel where lawful and practical
• A combination, along with directions about the agent, auction or private sale, reserve price and settlement timing

VCAT's lodestar is a just and fair outcome.

How the Money Is Ultimately Shared

Equal shares on title do not always mean an equal split of the net proceeds. VCAT can adjust the final numbers to account for improvements, repairs, mortgage repayments, rates, insurance and whether one party has had exclusive use of the home. That is where occupation rent and contribution claims enter the picture.

A Note on Forum Limits

VCAT cannot determine matters that require the application of federal law. Where the dispute is wrapped up with a marriage or de facto separation, the Federal Circuit and Family Court may be the proper venue, because it has wide property powers, including orders for sale and appointment of trustees. If family law issues are live, get advice on forum choice before filing.

Step by Step: Forcing a Sale as a Joint Tenant in Victoria

1. Gather Your Documents

Pull together the certificate of title, mortgage statements, rates notices, insurance, renovation invoices, rental income records and any co-ownership agreement. These will support or rebut any contribution and occupation claims.

2. Try to Settle First

Write to your co-owner with a proposal to sell or to buy you out, with a valuation method and timeframe. Propose mediation. VCAT will expect you to have tried reasonably to resolve the dispute.

3. File at VCAT Under Part IV

Prepare an application for co-owned land and goods. Ask for sale and relevant directions, or for division where feasible. If you want accounting adjustments, give particulars and documents to back them.

4. Interim Directions

VCAT can give practical directions early, for example appointing a selling agent, setting the sale method, requiring access for valuation or repairs, or restraining a party from interfering with the sale campaign.

5. Final Orders and Distribution

At the end, VCAT will make orders for sale or division and for distribution of net proceeds, taking into account any adjustments for contributions and occupation. Clear orders reduce friction at settlement.

Common Melbourne Scenarios

Relationship Breakdown, Both Names on Title

If you are separating and cannot agree on the home, the correct forum may be the family court rather than VCAT. The family court can order sale, appoint a trustee, and divide the proceeds as part of a just and equitable settlement. File in the wrong forum and you risk delay and extra cost.

Investment Property with a Sibling or Friend

No family law overlay usually means VCAT is available. Expect an order for sale unless there is a good reason to divide or to delay. The Tribunal will often set a process, choose or approve the selling agent and require cooperation with opens and access.

One Owner Has Paid Most of the Mortgage

Those payments can be recognised through contribution adjustments when the proceeds are split. Keep good records, and be ready to show that the payments exceeded your share.

One Owner Has Lived in the Home Rent Free

VCAT can consider ordering an amount equivalent to occupation rent to balance fairness between an occupying and a non-occupying owner. This is fact specific, so evidence of dates and market rent helps.

Severance, Survivorship and Why Timing Matters

Joint tenancy carries the right of survivorship. If a joint tenant dies before a dispute is resolved, the surviving joint tenant takes the whole legal title, and the deceased's will does not control that interest. Severing the joint tenancy converts it to shares as tenants in common, which can be relevant for estate planning and for managing risk during a dispute. Seek advice about whether severance is appropriate and when to do it, particularly if health or age issues are in play.

Tax, Duty and Finance Pointers to Discuss with Your Adviser

• Capital gains tax: where the property is a main residence, the main residence exemption may apply in whole or in part, which can influence settlement strategy. Investment properties bring CGT into sharper focus. Get tailored tax advice early.
• Survivorship and estate administration: survivorship on a joint tenancy bypasses probate for that asset, which can simplify or complicate overall planning depending on your aims.
• Mortgagee consent and sale logistics: most orders contemplate cooperation with the lender, and VCAT can give directions that help progress the sale if someone is obstructive.

Frequently Asked Questions

Do I Have to Sever the Joint Tenancy Before I Apply to VCAT?

No. The Act treats joint tenants and tenants in common as co-owners. You can apply as a joint tenant, although in some cases severance helps clarify shares or estate planning.

Can VCAT Refuse to Order a Sale?

VCAT has a discretion. It can refuse or delay a sale if a just and fair outcome requires a different order, for example a short stay so an occupier can relocate, or a physical division where lots can lawfully be created. The touchstone is fairness, not automatic sale.

What if My Co-Owner Blocks Opens and Valuations?

VCAT can order access and set rules for the campaign, including appointing the agent and setting the sale method, which makes the sale workable even in a tense co-ownership.

Is VCAT the Right Place if We Are Separating?

Often not. Family law property settlements usually belong in the Federal Circuit and Family Court, which has specialist powers to deal with the whole asset pool. Get advice on forum choice as one of your first steps.

Practical Checklist for Melbourne Co-Owners Ready to Act

1. Confirm how you hold the title, joint tenants or tenants in common, and check for any caveats or mortgages on the title.
2. Assemble documents showing payments, improvements and occupation, because these drive contribution and occupation rent adjustments.
3. Make a written offer to sell or to buy out, and propose mediation with an independent valuer to set price.
4. Consider whether severing a joint tenancy helps your position, noting Land Use Victoria's unilateral severance pathway.
5. Choose your forum, VCAT for most co-ownership disputes, or the family court if there is a separation proceeding.
6. Prepare a VCAT application that asks for sale orders and sensible campaign directions, and sets out your accounting adjustments with evidence.

Bottom Line

In Victoria, a joint tenant can start a process that results in a forced sale. The usual pathway is an application to VCAT under Part IV of the Property Law Act 1958. The Tribunal can order a sale and can fine tune how the proceeds are shared to reflect who paid what and who lived where. If the dispute is part of a separation, the family court may be the right venue. Early advice pays for itself, because forum, timing and evidence shape the outcome.

Need Help Deciding Your Next Step?

If you are a Melbourne homeowner or investor grappling with a co-owner who will not sell, talk to a conveyancer who works alongside property lawyers every day. Pearson Chambers Conveyancing can review your title, outline your options, and coordinate with lawyers where tribunal or court action looks likely. We also offer a free Section 32 contract review if a sale is on the cards.

Contact Pearson Chambers Conveyancing for friendly, local guidance:
Phone: 03 9969 2405
Email: contact@pearsonchambers.com.au