Court orders sale of co-owned property under Section 31 of Land and Conveyancing Law Reform Act 2009.

APPROVED [2026] IEHC 10

THE HIGH COURT

IN THE MATTER OF SECTION 31 OF THE LAND AND CONVEYANCING LAW REFORM ACT 2009

Record No.: 2025/24SP

BETWEEN:

RONAN CONNOLLY and CAROL DILLON

Applicants -and-

MATTHEW JAMES CONNOLLY and ANN O’CONNOR

Respondents

Judgment of Mr Justice Rory Mulcahy delivered on 12 January 2026

Introduction

1. The applicants and respondents in these proceedings are siblings. In 2016, they inherited a residential property in Foxrock, Dublin 18 from their parents (“the Property”).

They are now co-owners of the Property, it having been transferred to them by Deed of Assent on 15 February 2022.

2. The siblings were agreed that the Property should be sold, but, unfortunately, they could not agree on a mode of sale. Following a protracted dispute over this issue, the applicants issued a special summons seeking an order for sale pursuant to section 31 of the Land and Conveyancing Law Reform Act 2009 (“the 2009 Act”).

NO REDACTION REQUIRED

3. Three of the siblings represented themselves in the application. The second respondent was represented by solicitor and counsel.

Factual background

4. The applicants have filed five affidavits in support of the application. The respondents, between them, have also filed five affidavits. The contents of the affidavits reflect a sometimes bitter dispute between the siblings, and address many issues that have little relevance to the question of what should be done with the Property. I do not propose to rehearse the contents of those affidavits save insofar as they reflect the parties’ positions regarding the future of the Property. I should record, however, that the evidence suggests that the house has fallen into disrepair such that there is some urgency about resolving the dispute between the siblings.

5. At the core of the dispute is not whether the Property should be sold, but rather how it should be sold. In brief terms, the respondents wished to entertain bids for the Property from developers interested in its development potential. They contend that the Property has greater value if sold as a development site than if sold ‘as is’, i.e. as a residential property.

They have identified developers who have expressed an interest in acquiring the Property.

The first respondent has suggested that the Property be rented pending completion of a sale pursuant to such an arrangement.

6. The applicants do not appear to oppose the Property being sold as a development site.

Insofar as there may have been a perception on the respondents’ part that the applicants opposed a sale to a developer, the applicants have made clear that they have no such objection. The ‘sticking point’, however, is that the expressions of interest from identified developers which the respondents wish to entertain have been on the basis of developers acquiring an ‘option to buy’ the Property at a particular price, with a sale only being completed if and when the developer obtains planning permission. In this regard, the respondents have exhibited written offers from identified developers, including one detailed proposal from a particular developer made in 2017, and repeated in 2022. The 2022 offer

referred to an “option to purchase”. The 2017 offer stated in express terms that the developer would have had a right, but not an obligation, to purchase the Property.

7. The second applicant exhibited a similar offer from the same developer dated 1 February 2023, but for a lower sum. The second respondent exhibits a further offer from the same developer, dated 20 March 2025 for a “call option agreement” at the same price proposed in the 2017 and 2022 offers.

8. These contingent offers are not acceptable to the applicants, who want the Property sold on the open market.

9. This application came on for hearing on 24 July 2025 but, at the suggestion of the court, was adjourned on consent of the parties to enable them to obtain an up-to-date opinion on value from an agreed agent. The parties eventually agreed to engage CBRE Ireland to provide such an opinion, subject to the usual caveats, dated 26 November 2025. The court has repeatedly urged the parties to agree a way forward.

10. The opinion noted the development potential of the lands, and that similarly located properties had sold for prices reflecting such potential in recent time. It provided an opinion on value, having taken the development potential into consideration, and based on the Property being “offered on the open market for sale, on a vacant possession basis”.

11. I afforded the parties an opportunity to deliver further affidavits, in light of CBRE’s opinion. All bar the first applicant did so.

12. The second respondent, in effect, agreed with CBRE’s assessment of the Property, highlighting her view that any sale of the Property should seek to take advantage, if possible, of its development potential. Her affidavit suggests various conditions for such a sale, such as the appointment of an independent selling agent, a dual marketing campaign, including engagement with developers, and a minimum reserve.

13. The second applicant also agrees to the Property being sold on the open market to the highest bidder, whether a developer or not. She suggests the appointment of a solicitor to have carriage of the sale and recommends that the respondents propose five selling agents

and that the applicants select from that list. She identifies a solicitor, described as the family solicitor for many years, to have carriage of the sale.

14. The first respondent opposes the sale of the Property by auction – or at least questions whether that will achieve the best price – and refers to the fact that if the Property were sold with the benefit of planning permission, a better price would be realised. He asks the court to consider “teasing out” the offers from developers, referred to above. In effect, the first respondent’s position is that the court should refuse the order for sale and instead direct the parties to enter into an option agreement with a developer, or at least enter negotiations with a developer, which will ultimately, he believes, lead to a sale on more favourable terms.

15. In the event of a court-ordered sale, he suggests that the Court appoint a solicitor to have carriage of the sale, identifying two possible candidates, and ruling out another on the basis of their past representation of the second applicant. He suggests that it is not necessary to engage an estate agent.

The 2009 Act

16. Section 31 of the 2009 Act provides, in relevant part, as follows:

31.— (1) Any person having an estate or interest in land which is co-owned whether at law or in equity may apply to the court for an order under this section.

(2) An order under this section includes—

(a) an order for partition of the land amongst the co-owners,

(b) an order for the taking of an account of incumbrances affecting the land, if any, and the making of inquiries as to the respective priorities of any such incumbrances,

(c) an order for sale of the land and distribution of the proceeds of sale as the court directs,

….

(f) such other order relating to the land as appears to the court to be just and equitable in the circumstances of the case.

(3) In dealing with an application for an order under subsection (1) the court may—

(a) make an order with or without conditions or other requirements attached to it…

17. Section 31(2)(f) appears to afford the court significant latitude in dealing with an application under section 31. Insofar as the first respondent, in effect, wants the co-owners to accept a conditional offer to purchase the Property, any jurisdiction to make an order requiring them to do so would, it seems, fall to be made under that sub-section.

18. Wylie on Irish Land Law (6th ed., Bloomsbury Professional, 2020 at 8.42) sets out some guidelines as to how the discretion in section 31 should be exercised. Most, however, concern cases involving applications in relation to the family home or where partition and sale is sought by a judgment mortgagee in order to satisfy a judgment debt.

19. The author refers to one case concerning an application for partition of a commercial property, Yippi Trading Ltd v Costello [2013] IEHC 564, in support of his first guideline that courts will generally be “sympathetic” to section 31 applications subject to remaining mindful of the disadvantages and complications which may arise. That case involved shared ownership of a car park. Each co-owner also owned neighbouring developments, and disputes had arisen regarding use of the car park during construction works by one co-owner. The other co-owner sought an order for partition. In refusing partition, Ryan J (as he then was) stated as follows:

“The 2009 Act gives the court a wide discretion in cases of dispute to decide how best to reconcile the competing interests. Section 31 includes the power to refuse to make an order and dismiss the application outright. S-s.(3) permits the court to attach conditions to any order or to grant a combination of orders under s. 31. There is no guiding case law on this provision. There will undoubtedly be situations where there is little sense in keeping tenants in common tied in to a legal relationship which does not meet their needs and in which shared ownership of the property is no longer feasible. In such a scenario there is merit in the court making an order in favour of partition of the property in question. However, I do not feel that this case fits that category.

It seems to me that for an order of partition to be made, division of the property in question must be feasible in both a practicable and legal sense and have regard to any potential planning permission implications. It is a question of practicality rather than of principle. If partition is refused in one circumstance, that is not the end of the matter for all time and in every situation. The relationship continues and with that the option if circumstances change of seeking to persuade a court to adopt one or more of the statutory reliefs.

The benefits of severance of common ownership are clarity and simplicity and freedom to control one's own property without the need for third party consent. I think that a court will generally be sympathetic to an application under s.31. However, the disadvantages and complications of partition in the circumstances of this case outweigh the gains that the plaintiff hopes will result...”

20. There is no dispute in this case that the applicants have an interest in the Property and are persons entitled to make an application in respect of the Property pursuant to section 31.

No party seeks partition in lieu of sale, an obviously impractical solution in this instance.

21. The court, nonetheless, retains a discretion in deciding whether to make the order for sale sought and, if making an order for sale, in deciding on the terms of that sale. Though an eventual sale of the Property appears inevitable, the court must, however, be mindful of any disadvantages or complications of any order it makes. An order for sale may involve less scope for complication than the order for partition sought in Yippi Trading, but the court must consider any injustice which may arise.

Decision

22. The parties are agreed that the Property should be sold. They are unable to agree the modalities of such a sale. Absent an order directing that the Property be sold, this may continue interminably, contrary to the wishes of all involved, with the potential to undermine the value in the Property if it falls into further disrepair, or agreement cannot be reached on its continued maintenance.

23. Insofar as the first respondent still wishes to entertain offers which are conditional, such offers necessarily involve the assumption of some risk by the vendor. In one affidavit, the second applicant describes such an arrangement as a joint venture. I think that may be an overstatement, but there is no doubt that when granting an option to buy, the vendor carries significant risks, for instance, of a fall in the market, or a failure to achieve planning permission. Moreover, there would be inevitable delay before any return could be realised by the co-owners. The potential return may be greater, but that reflects the risk being taken. It would, in my view be, wholly inappropriate to impose an obligation on the other parties to engage in such speculation against their wishes. No pressing need to consider this option has been identified by the first respondent other than to maximise each party’s share of any return from the sale of the Property.

24. Insofar, therefore, as the first respondent seeks that an order should be made directing that the co-owners enter into an option agreement with a purchaser, it would not be just and equitable to make such an order. I do not, therefore, need to consider the question of whether there is, in any event, jurisdiction to make an order of that type.

25. Accordingly, the only way to break the impasse between the co-owners is to make an order for sale pursuant to section 31(2)(c) of the 2009 Act.

26. There remains the question of whether any conditions should be placed upon such a sale, pursuant to section 31(3).

27. Both the second applicant and the respondents urge the court to, in effect, micromanage the sale process. I do not think it would be appropriate for me to do so. In particular, it would not be appropriate for a court to nominate estate agents or solicitors to manage the sale process.

28. I can indicate my view that an experienced solicitor should have carriage of the sale of this valuable Property, and that the sale should take place through an experienced auctioneer or estate agent. The first respondent’s suggestion that it is not necessary to appoint an estate agent seems fraught with risk and will likely only lead to further disputes if, in effect, the parties have direct control over the sale process. The method of selling the Property should be as advised by the experienced agent, following a marketing campaign recommended by them. In light of the CBRE opinion, it seems that this would inevitably involve seeking expressions of interest from developers, a corollary of selling the Property on the open market.

29. I strongly encourage the parties to agree a solicitor and estate agent/auctioneer.

Suggestions have been made by both the second applicant and the respondents in this regard, which could readily form the basis for agreement. Absent agreement, it will likely be necessary to seek nominations from relevant representative bodies, which will only add to delay and expense in completing what has already been a protracted process.

Conclusion

30. I propose, therefore, making an order for the sale of the Property pursuant to section 31(2)(c) of the 2009 Act.

31. I will list the matter at 10.30 am on Thursday, 29 January 2026 for the purpose of making final orders.