'No fault ouster': transition to a more contemporary understanding of society?

Galloway, Kate (2010) 'No fault ouster': transition to a more contemporary understanding of society? In: Australasian Law Teachers' Association. pp. 1-7. From: ALTA 2010 65th Annual Australasian Law Teachers Association Conference, 4-7 July 2010, Auckland, New Zealand. (Unpublished)

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Before the 2009 New South Wales decision in Callow v Rupchev, there were three circumstances in which an occupation fee would be payable by a co-owner to another co-owner: first, when the co-owner in possession makes a claim against the other for improvements made to the property; secondly where they have ousted the co-owner from the property; and thirdly where there has been a 'constructive ouster' by a denial of title. In Callow v Rupchev the New South Wales Court of Appeal, apparently following a line of UK decisions, found a further circumstance in which occupation rent can be claimed. The court said that cases of relationship breakdown where there is no 'attributable fault' by either party, represent a further ground for charging the remaining co-owner with occupation rent. This further ground is to be distinguished from actual ouster (involving physical exclusion from property, violence or actual violence), and also from constructive ouster. This paper explores the context in which this decision was made, and reviews previous decisions relating to claims for occupation rent occurring within a relationship breakdown. It asks whether 'no fault ouster' modernizes the law of co-ownership, answering the critique of Kirby P in Foregeard v Shanahan. To the extent that the doctrine of ouster has traditionally represented a particular understanding of the nature of an undivided proprietary interest in land, this paper assesses whether this approach flags a transition in our understanding of the concept of property to mirror a more contemporary picture of society.

Item ID: 21738
Item Type: Conference Item (Presentation)
Keywords: property law; ouster; co-ownership; joint tenancy; tenancy in common
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Date Deposited: 07 Aug 2012 05:06
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