Section 31 LCLRA 2009: No “Just and Equitable” Power to Force Co-Owners into a Speculative Developer Option; Court Orders Open-Market Sale

Introduction

Connolly and Anor v Connolly and Anor (Approved) [2026] IEHC 10 concerns an intra-family co-ownership dispute under section 31 of the Land and Conveyancing Law Reform Act 2009 (“the 2009 Act”). Four siblings inherited and became registered co-owners (via Deed of Assent dated 15 February 2022) of a residential property in Foxrock, Dublin 18 (“the Property”).

While all parties accepted that the Property should be sold, they were deadlocked on how it should be sold. The respondents wanted to pursue developers’ proposals involving an option to purchase (or “call option agreement”), where completion would occur only if planning permission was obtained. The applicants rejected conditional/contingent structures and sought an open market sale.

The key issues were:

Whether the High Court should order a sale under s.31(2)(c) where sale is agreed but the mechanism is disputed.
Whether the Court could (or should) require unwilling co-owners to enter a developer option arrangement as “just and equitable” relief under s.31(2)(f).
What, if any, conditions should be attached to a sale under s.31(3), including whether the Court should “micro-manage” the sale process.

Summary of the Judgment

Mulcahy J ordered the sale of the Property under s.31(2)(c), holding that this was the only practical means to break the impasse. The Court refused to direct the parties to enter an option agreement with a developer, describing such a route as involving material vendor risk, delay, and an element of speculation that it would be “wholly inappropriate” to impose on unwilling co-owners.

The Court further declined to “micro-manage” the sale by selecting solicitors or estate agents, although it indicated that an experienced solicitor should have carriage of the sale and that sale through an experienced auctioneer/estate agent was strongly advisable. The matter was adjourned for final orders.

Analysis

Precedents Cited

The principal authority discussed was Yippi Trading Ltd v Costello [2013] IEHC 564, referred to via Wylie on Irish Land Law (6thed., Bloomsbury Professional, 2020 at 8.42) as guidance on the exercise of discretion under s.31.

How Yippi Trading Ltd v Costello [2013] IEHC 564 Influenced the Decision

In Yippi Trading Ltd v Costello [2013] IEHC 564, Ryan J emphasised the breadth of s.31: the Court may grant a combination of reliefs, attach conditions, or refuse relief outright. He also noted the lack of guiding case law and framed the task as reconciling competing interests pragmatically, weighing gains against disadvantages and complications.

Mulcahy J drew on this approach in two ways:

Discretion is real and contextual: even where entitlement to apply is clear, the Court must still consider whether an order (and its terms) could generate injustice or complication.
Practicality over theory: although the relief sought here was sale (not partition), the Court adopted the same pragmatic lens—what order actually resolves the dispute without unfairly forcing parties into an unchosen relationship or risk profile.

Unlike Yippi Trading (where partition was refused), this case was presented as one where ongoing co-ownership without a decisive sale order risked indefinite deadlock and deterioration of a valuable asset.

Legal Reasoning

(1) Why a Sale Order Was Necessary

The Court treated the parties’ inability to agree “modalities” as functionally disabling the agreed objective (sale). Without a sale order, the dispute could “continue interminably,” risking further disrepair and value erosion, and leaving basic maintenance decisions hostage to conflict. This practical impasse justified intervention under s.31(2)(c).

(2) Why the Court Refused to Compel a Developer Option (Even Assuming Jurisdiction)

The respondents’ preferred structure was not merely “selling to a developer,” but granting an option where the developer could decide to complete only if planning permission was obtained. Mulcahy J characterised this as imposing significant vendor-side risk (including market movement, planning failure, and delay in realising proceeds).

The Court held that it would be not “just and equitable” to force co-owners to accept that speculative risk against their wishes, particularly where the only identified rationale was to maximise the sale return. Importantly, the Court did not decide whether it had jurisdiction to compel such an agreement under s.31(2)(f); it was sufficient that, on the merits, such an order would be inappropriate.

(3) Conditions and “Micro-Management” Under s.31(3)

Although s.31(3) allows conditions, the Court rejected invitations to manage the granular mechanics of sale (including selecting named solicitors/agents). The judgment reflects a boundary between:

Judicial case-resolution (ordering a sale to end deadlock), and
Operational execution (marketing strategy, agent selection), which the Court considered better handled by experienced professionals chosen by agreement.

Notably, the Court’s approach was informed by the risk that party-controlled execution would produce further disputes. It indicated that an open-market sale— consistent with the CBRE opinion’s assumptions—would “inevitably” include developer interest as part of proper marketing, without requiring an option structure.

Impact

Limits on “creative” s.31 outcomes: the decision signals that, even with the broad language of s.31(2)(f), courts will be slow to compel co-owners into contingent, risk-bearing commercial arrangements (such as planning-dependent options) where a conventional open-market sale can resolve the dispute.
Open-market sale as the default dispute-breaker: where co-owners agree that sale is required but disagree on strategy, the Court is likely to prefer an open-market process rather than forcing a particular commercial bargain or timing the sale to planning outcomes.
Judicial restraint in sale mechanics: the refusal to nominate agents/solicitors underscores that s.31 is not a mandate for the Court to run a property transaction; the order may compel sale, but the execution should typically be professionalised and agreed.
Development potential can be captured without options: by endorsing open-market sale “taking development potential into consideration,” the judgment suggests that proper marketing can solicit developer bids without transferring planning risk to the vendors through an option.

Complex Concepts Simplified

Co-ownership: more than one person owns the same property. Major decisions (like sale) often require agreement, which can create deadlock.
Section 31 (2009 Act): allows a co-owner to ask the Court for remedies including partition, sale, or other “just and equitable” orders.
Order for sale (s.31(2)(c)): the Court directs that the property be sold and proceeds distributed as directed.
“Just and equitable” (s.31(2)(f)): a flexible fairness-based power, but not a licence to force parties into speculative commercial arrangements.
Option to purchase / call option: the buyer pays (or agrees terms) for the right—but not the obligation—to buy later, often conditional on events like planning permission. The seller bears the risk of delay and adverse change while the buyer retains discretion to walk away.
Vacant possession: the property will be sold free of occupants so the buyer can take immediate possession.
“Carriage of the sale”: the solicitor who manages the legal process for the transaction (contracts, title, closing).

Conclusion

Connolly and Anor v Connolly and Anor (Approved) [2026] IEHC 10 confirms a practical, risk-sensitive approach to s.31 applications: where co-owners are stuck on sale strategy, the Court will typically break the impasse with an order for open-market sale, and will not compel unwilling parties to accept the risks and delays inherent in planning-contingent developer option arrangements merely to pursue a potentially higher return. The judgment also signals judicial restraint in transaction mechanics, encouraging agreement on competent professionals rather than court-directed “micro-management.”