I want to sell my land but my two brothers farm it. What are my options?

The difficulty is my two brothers farm the lands on two different parcels and I have an oral agreement with them that they pay me every year a fixed sum of money similar to a rent as co-owner of the land. This arrangement has always worked but I now wish to sell my share and I am not sure if my brothers are in a position to buy me out and their preference is likely to be to keep farming all the lands. Before I speak with them what are my options here?

Dear Reader

This situation is not uncommon. I note you and your brothers hold the land as tenants in common in equal shares. This means that each of your respective shares and land can be passed on to the next generation. In the case of a tenancy in common, the co-owner that dies can leave their share to another person under their will or their next-of-kin on intestacy. Joint tenancy is the other type of ownership which means that on death, the other joint owners automatically acquire ownership of the deceased's joint owner's share.

You have a couple of options here which could be considered:

1. Your brothers as co-owners could purchase your interest. This would entail obtaining a valuation from an auctioneer as to the full value of all the lands and a purchase price would have to be agreed based on the valuation. A solicitor would have to be engaged to advise legally in respect of the transfer and tax advice should be obtained.

2. You and your brothers by consent could agree to an appropriate subdivision of the lands which would then facilitate that you could sell your portion. Consulting engineers would have to be engaged to draft the appropriate land registry compliant maps and again solicitors and tax advice should be obtained.

3. If an agreement cannot be reached you can make an application to court for a partition of sale of lands. You would be essentially petitioning the court to divide the property or force a sale. In this respect, the court can make orders in respect of the following 

· Physical division or partition of the lands;

· An order for sale with a distribution of the net proceeds;

· Make enquiries into respective entitlements of the parties;

· They can dispense with requirement for consent;

· Adjustment in respect of payments that have been made by the owners. An example of this would be redistribution of profits or rents received disproportionately to one of the co-owners.

· Any other order that the court deems fits and just in the circumstance.

If you are making an application to court, you will have to engage a solicitor who, with the assistance of a barrister, would have to prepare the appropriate court proceedings. It will probably be advisable before preparing proceedings to engage a consulting engineer in respect of preparing maps and an auctioneer in respect of valuating the lands.

The difficulty with bringing such proceedings is they can be lengthy and can take in certain circumstances a number of years and all the parties will have to engage solicitors which can be costly. It would be preferable to try and speak with your brothers and see if this can be resolved amicably without incurring the costs of litigation. Mediation would be another option that would be worth considering early on.

Stephen Coppinger, is a solicitor practicing in Walsh & Partners, Solicitors and Commissioners for Oaths, 17, South Mall, Cork.

- Email: info@walshandpartners.ie - Web: www.walshandpartners.ie 

While every care is taken to ensure accuracy of information contained in this article, solicitor Stephen Coppinger does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.