Co-ownership of real property arises most commonly through inheritance, but also through divorce, joint purchase or other means. Where co-owners are unable to reach agreement on a voluntary division of the jointly held assets, any of them may apply to the court for judicial partition. This article examines the judicial partition procedure for real property — its two phases, the disputes most commonly encountered and the mechanisms available for final distribution.
1. Scope and limitation period
A claim for judicial partition of real property is not subject to a limitation period — any co-owner may request partition at any time, regardless of how long the co-ownership has existed. Jurisdiction lies with the district court at the location of the property.
It should be noted that judicial partition is not available for inherited undivided shares in the capital of a joint-stock company — only out-of-court partition is permitted for shares.
2. First phase — establishing the co-owners and their shares
Judicial partition proceedings are conducted in two phases. The first phase determines who the co-owners are and the size of each person's undivided share. Partition proceedings in which any co-owner does not participate are void — all must be joined as parties.
At the first hearing any party may raise objections to another's right to participate or to the size of their share. Disputes typical of this phase include:
- challenges to wills;
- transfers of property in exchange for care and maintenance;
- claims to have acquired a property by acquisitive prescription through uninterrupted possession for at least ten years.
3. Acquisitive prescription in co-ownership
The question of acquisitive prescription in a co-ownership context requires a precise distinction between possession and detention.
Possession under Art. 68 of the Property Act has two elements: an objective element — the exercise of factual control over the property — and a subjective element — the intention to hold the property as one's own. A detentor, unlike a possessor, exercises factual control on behalf of another person and has no intention to appropriate the property.
Under Art. 69 of the Property Act, a person exercising factual control over a thing is presumed to hold it as their own, unless proved to hold it for another. The application of this presumption in co-ownership proceedings depends on how the co-ownership arose:
- Co-ownership arising from a ground other than inheritance — the presumption in Art. 69 applies on general terms. Where a co-owner has exercised factual control over the entire property on a basis that excludes the other co-owners' possession, the intention to appropriate is presumed; it is sufficient to prove the exercise of factual control. The opposing party must then prove either that possession was not continuous and undisturbed, or that the co-owner held the property for the others as well.
- Co-ownership arising from inheritance — the party relying on prescription must themselves prove that they took steps which objectively manifested to the other co-owners an intention to possess their undivided shares for their own benefit. Where the basis on which factual control was established indicates co-possession, the co-owner is a detentor of the others' shares and the presumption is considered rebutted.
Once all disputed questions are resolved, the court issues a judgment establishing the right to partition, which has res judicata effect as to the parties, the properties and each party's share. These matters cannot be relitigated. If the proceedings are subsequently discontinued and later restarted, the second phase commences directly without repeating the first.
4. Second phase — settling accounts and distribution
4.1. Settling accounts between the parties
The second phase begins with the settlement of claims between the co-partitioners. The most frequent claim is for reimbursement of improvements made to the property. The court rules on all claims in a single judgment, which may be issued before or simultaneously with the judgment declaring the partition deed final.
4.2. Expert valuations
Expert reports are commissioned during this phase to determine the value of the property or properties and to assess whether each is physically divisible.
4.3. Distribution of the properties
The method of distribution depends on the number and nature of the properties:
- A single indivisible property — may be assigned to one co-owner, who compensates the others by paying the equivalent of their shares. Where several co-owners seek the property, it is assigned to the one who offers the highest price.
- Multiple properties or a divisible property — monetary equalisation payments are made depending on what each party receives.
- Lot — where the parties cannot agree on who receives which property, the court may resort to drawing lots.
- Forced sale — where the property is indivisible and no co-owner is able to pay out the others, the property is sold at a public auction. The proceeds are distributed among the co-owners in proportion to their shares.
How we can help
We represent co-owners in judicial partition proceedings for real property — from preparing the claim and conducting the case through both phases to the conclusion of the proceedings. We also advise on acquisitive prescription, challenges to wills and claims for reimbursement of improvements. Contact us for an assessment of your specific situation.
Note
This article is for general information only and does not constitute legal advice. Legislation changes over time — for current, binding guidance on your case, please contact us.