Factors relevant to order for sale under the Partition Ordinance

In considering whether to order a sale under the Partition Ordinance the court is to consider how the order would affect persons ‘interested’ in the property. This refers only to those with a legal or beneficial interest in the property.

In Ip Sau Shu v Sham Lai Hing ([2003] 2 HKLRD 916, CFI) the plaintiff and defendant were joint tenants of the property at which they co-habited, They had a daughter who lived with them. They fell out. The plaintiff severed the joint tenancy and sought an order for sale. The power to order a sale is found in section 6 of the Partition Ordinance. Section 6(1) empowers the court to order a sale ‘where it appears to the Court that a partition of the property would not be beneficial to all the parties interested.’  One question was whether the daughter was ‘interested’. Deputy Judge Poon held that she was not. Only someone with a legal or beneficial interest in the property was ‘interested’ in the relevant sense. The daughter’s circumstances were relevant only as an aspect of her mother (the defendant’s) circumstances. On the facts, the plaintiff would suffer far greater hardship if a sale were denied than would be caused to the defendant by the sale. Accordingly, an order for sale was made.

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