Two brothers inherited a house and entered into an agreement to provide that in the event of dispute, the disputing brother would have one year to vacate and use his equity to finance other accommodation and the remaining brother would be solely liable for mortgage payments and outgoings, with any sale being subject to the terms of the agreement. However the disputing brother was unable to obtain finance from a lender because he was only one of two co-owners.
The law is that a co-owner is entitled to an order under section 66G “almost as of right” unless such an order is inconsistent with contractual or equitable rights.
The court held that the disputing brother’s inability to refinance took matters outside the terms of the agreement and the court ordered sale.
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