When co-owners of property cannot agree on how to deal with it — whether to sell, retain, or divide — the law provides a mechanism to break the deadlock. In Queensland, any co-owner can apply to the court under section 38 of the Property Law Act 1974 (Qld) to appoint a statutory trustee for sale. It is a powerful remedy that concentrates minds and often resolves disputes without a final court hearing.
What Is a Statutory Trustee for Sale?
Under section 38 of the Property Law Act 1974 (Qld), a court may appoint a trustee for the sale of co-owned property (whether real or personal) where the co-owners cannot agree on what to do with it. The trustee — typically a solicitor or property professional — is given authority to sell the property and distribute the proceeds between the owners according to their respective interests.
The application can be made by any co-owner, regardless of the size of their interest. The court’s discretion to refuse the appointment is narrow. Australian courts have consistently held that, absent compelling circumstances, a co-owner is entitled to have their property interest realised.
A Recent Boss Lawyers Matter
We recently assisted a client through a complex joint property ownership dispute involving family members, significant emotional tension, and serious allegations of financial misconduct. The matter involved a co-owned residential property acquired years earlier, with both parties contributing to the purchase and ongoing holding costs but holding fundamentally different views on the property’s future.
When negotiations broke down entirely, we filed an application for the appointment of a statutory trustee under section 38. The filing of that application — and the commercial reality it forced upon both parties — created the pressure needed to reach a negotiated settlement, which was ultimately achieved out of court at significantly less cost than a fully contested hearing would have required.
Grounds for Applying for a Trustee for Sale
A court will generally appoint a trustee for sale where:
- The co-owners cannot agree on whether to sell or retain the property
- One co-owner wishes to sell but the other refuses or fails to cooperate
- The relationship between co-owners has broken down to the point that joint management is impossible
- There are disputes about the use or maintenance of the property
The court can also make ancillary orders dealing with the distribution of proceeds, adjustment for contributions made to the purchase price or holding costs, and equitable accounting between the co-owners.
Equitable Accounting: Who Gets What?
In many co-ownership disputes, the parties do not hold the property in equal shares, or their contributions to purchase, improvement, or holding costs differ. In those circumstances, the court can make orders for equitable accounting — effectively adjusting the distribution of proceeds to reflect the true contributions and interests of each party.
Relevant considerations include:
- The respective contributions to the purchase price
- Payment of mortgage repayments, rates, and insurance
- Expenditure on improvements that increased the property’s value
- Occupation rent — where one co-owner has had exclusive or predominant use of the property
Family Property Disputes: Additional Complexity
Co-ownership disputes between family members — siblings, parents and children, separated de facto partners — carry additional emotional weight and complexity. In some cases, there may be overlapping claims under the Succession Act 1981 (Qld), the Property Law Act, or equitable doctrines such as constructive trust or proprietary estoppel.
Experienced legal advice early in these disputes — before positions harden and costs escalate — consistently produces better outcomes for all parties.
What Boss Lawyers Does in These Matters
We act for co-owners seeking to resolve property disputes — whether the goal is a negotiated settlement, a court-ordered sale, or protection of a client’s contribution claim. We understand that these matters frequently involve family relationships and significant personal stakes, and we approach them with both commercial precision and an awareness of what a resolution that works in the real world actually looks like.
Frequently Asked Questions
Can I force a sale of co-owned property in Queensland?
Yes. Under section 38 of the Property Law Act 1974 (Qld), any co-owner can apply to the court for the appointment of a trustee for sale. The court’s discretion to refuse is narrow; in most cases, the application succeeds.
Do I need to own 50% of the property to apply?
No. Any co-owner, regardless of the size of their interest, can apply. A 10% co-owner has the same right to apply for a trustee for sale as a 90% co-owner.
What if I have contributed more to the property than my co-owner?
The court can make equitable accounting orders adjusting the distribution of proceeds to reflect each party’s actual contributions, including to the purchase price, mortgage repayments, improvements, and ongoing holding costs.
Can a co-ownership dispute be resolved without going to court?
Yes — many do. Filing an application for a trustee for sale often creates the commercial pressure needed to reach a negotiated settlement. Mediation is also available and can be effective where the parties have some goodwill remaining.
Related Reading
This is general information only and is not legal advice. You should obtain professional advice specific to your circumstances.
Speak to Boss Lawyers
If you are in a co-ownership dispute and need to understand your options — including whether to apply for a trustee for sale or pursue a negotiated resolution — contact Boss Lawyers. Call 1300 267 711 or complete our contact form.
