Joint Property Law

JOINT PROPERTY DIVISION

Hello my name is OLA NORMAN and I am a Norwegian citizen. Five years ago, my wife and I bought a property in Olocau in equal shares with my brother and sister-in-law. Recently, my wife and I had to close our business and now we need to sell the property. The problem is that my brother refuses to sell it and the amount he offers us for our property’s share is much lower than its market value. Is there any way to force my brother to sell the property, or at least, to compel him to pay us a fair price for our ownership share? Many thanks.

 

According to article 400 of the Spanish Civil Code, no co-owner will be obliged to remain in a joint ownership situation. Therefore, any co-owner, irrespective of his or her ownership interest (even if it is a minor or very small interest) is entitled to claim at any time the division of the joint property.

 

However, several clarifications must be made to this principle, which is known as the exercise of the “actio communi dividundo” (=action for joint property division):

 

1)     All co-owners may agree to remain in joint ownership with undivided ownership interests and consequently no co-owner will be entitled to claim the property division. Such agreement will expire after ten years, although at its expiry date, it can be extended through a new agreement for a maximum period of ten years.

 

2)     The joint property can be divided (provided that all co-owners agree) by the own interested parties or by arbitration (as per Spanish Arbitration Law).

 

In the event that no agreement is reached between the co-owners, any co-owner is entitled to go to courts and claim the property division. In this case, the following two options are permitted:

 

When the property is materially divisible (for instance: house furniture), it must be divided into as many shares as ownership interests are held by the different co-owners and this material or physical division will not mean a loss of value with respect to the joint property value. If no agreement is reached by the parties, the court will proceed to such division and to its subsequent adjudication.

 

When the property is essentially indivisible, (for instance: a house, a horse, etc.) it can be sold and each co-owner is entitled to a share of the sale proceeds proportional to his or her ownership interest.

 

 
However, as far as real estate is concerned, a material division is normally not feasible. If a property is formed by several floors and premises, its division and adjudication is, in most cases, not viable, not even in the case of properties in a horizontal property regime, due to the differences existing in their tenancy agreements.

 

Likewise, if a same property is owned by different owners it might be rather difficult to reach a satisfactory agreement to all the parties. The action of joint property division can take place but this option is normally traumatic and irremediable since it implies the sale of the property at public auction. The inconvenience of a public auction sale is that the property will be sold undervalued.

 

In these cases, it would be advisable to reach an agreement, which even if it does not cover all the expectations, will avoid the public auction sale of the property.

 

Gonzalo Blanco
C/Reina 21 Xativa. VALENCIA
C/Diana 14 , Dénia. ALICANTE
Telephone: 96 6420719


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