Property division – procedure
In this article we will explain what the procedure for property division is, what the deadlines are and whether I need a lawyer. If you have any further questions, you can contact the lawyers at Legal Frame, who have many years of experience and an extensive practice relating to property division cases.
When is there co-ownership of property?
Co-ownership of immovable property exists when it is owned by two or more persons. Co-ownership may arise by purchase, inheritance, donation and other means of acquisition.
Where there is co-ownership, each of the owners may use the property with the others, and where the property is used only by one owner, the others are entitled to compensation.
Apart from partition, co-ownership can be terminated in another way:
- Waiver. A co-owner may renounce his right by notarizing his renunciation and, where the co-ownership has arisen by inheritance, by renouncing the inheritance. The renunciation itself shall be entered in the Property Register of the Registry Agency.
- Transfer of beneficial ownership. The transfer may be made for the benefit of the other co-owner or co-owners. If you decide to sell your interest to a third party (who is not a co-owner), you must first offer your interest to the other co-owner(s). The offer must contain the same parameters under which you will sell your shares to a third party. When the other co-owners refuse by declaration, you will be entitled to sell your property. It is important to know that this rule does not apply when you transfer your ideal shares by donation.
What is property division?
A partition is a method by which co-ownership in immovable property held by several persons is terminated. There are two types of partition – voluntary and judicial. In both cases, you have to follow a set of procedures and legal requirements, which is why we advise you to contact a partition lawyer. Most often, the parties come to partition because of a deterioration of relations and an inability to find a common solution for a co-owned property. The quicker and cheaper way to resolve the dispute is by voluntary partition.
In the partition, each of the co-owners receives a part of the common property. There are cases where partition cannot take place. For example, in the case of spouses who have opted for the community of property regime. That is, until the marriage is dissolved or until the regime they have chosen is changed, they cannot divide the real estate. Partition is also inadmissible in the case of common parts of a condominium, as well as properties included in a civil partnership.
For the partition to be successful, all co-owners must have participated in it. This poses a number of risks, particularly in the case of heritable property, which is why we advise you to contact an experienced solicitor. Each immovable property should be carefully examined as to ownership, how it came into existence and who the heirs are (where the property is inherited), as if all co-owners are not involved – the partition is null and void.
If you omit to include real estate in a partition case, it does not prevent you from making another (second) partition. If a property not owned by the parties to the proceedings is included in the partition, the partition does not take effect. When the partition is carried out, each co-owner receives a real share of the co-ownership.
If no real share can be obtained in a judicial partition, the properties are put up for public sale and the co-owners divide the sale price. In a voluntary partition, the co-owner who does not receive a share should receive an equivalent in money or other things. Otherwise, the partition shall be deemed null and void and shall have no effect.
What types of division are there?
The deed may be voluntary or judicial. In all cases, a voluntary partition is a considerably quicker way of dividing the property. It also requires much less money and achieves the objectives of the division more quickly.
- Voluntary sharing. A voluntary partition is a contract between the co-owners. It is an agreement on the division of property or the settlement of money or other things. The voluntary partition agreement is notarised and entered in the Property Register.
- Judicial partition. Where agreement between the co-owners is impossible, a judicial partition may be initiated by one of the co-owners. A judicial partition proceeds in two phases:
(A) The first phase is the court’s determination of whether there is co-ownership, who the co-owners are and the amount of their shares. In the first phase of judicial partition, it is also examined how the property was acquired, whether it is heritable, who the heir is and other issues relevant to the ownership of the real estate. The partition proceedings are initiated by a claim of an interested party – a co-owner. You can ask a lawyer to prepare an application for the commencement of a partition case. In the first phase of partition, additional claims (e.g. for reduction of the investigating mass) may also be brought.
B) Second phase of judicial division. After clarification of the above issues, the court proceeds to a second phase, the main purpose of which is the dissolution of the co-ownership. If the properties to be divided are such that each co-owner receives one property, the court draws up a partition report. It shall state the shares which the co-dividers receive. A lot is then drawn to determine which co-owner receives which property share. Where the lot is unfair or unsuccessful, the court determines the shares. On the basis of the court decision, the co-owners become the exclusive owners of the property.
If the properties cannot be divided so that each co-owner gets one, the court puts the properties up for public sale. The sharers get a writ of execution, which they use to file a case with a bailiff who sells the property. The price received from the sale is divided among the co-owners according to their shares.
When you want to divide co-owned real estate, you can turn to an attorney from Legal Frame. Our lawyers will assist you in preparing the necessary documents for both judicial and voluntary partition.
