9 Key points about the commonplace Division
No co-owner is obliged to remain in a community and it has the action of division of the common thing.
La situación más habitual es la de un inmueble perteneciente a varias personas, as a result of an inheritance or marriage or domestic partnership.
The Civil Code provides in Article 392 when there is community ownership of a thing or right belongs to several persons undivided. In this situation the investors will participate in both benefits and costs in proportion to their quotas, that same presumed unless proven otherwise.
Este régimen es una fuente de conflictos, which often they end up in the courts.
Before reaching it, el primer paso sería obtener una tasación del bien por un tercero independiente. Once you know the value of good, es posible que uno o varios de los copropietarios se lo queden, pagando la parte correspondiente al resto, or make the sale and then distribute the fruit.
When this path is not possible (and recently real estate sales have been especially difficult), should go to the courts, para ejercitar la “actio communi dividundo”.
The división de la cosa común es un derecho que tiene individualmente cada copropietario que forma parte de una comunidad de bienes.
Our Civil Code, in his article 400, this right includes although it also includes the validity of an agreement by which the "villagers" are committed to maintaining undivided by a maximum of 10 years old, which can be renewed.
El primer punto a analizar es si la finca es o no indivisible: If divisible, a proportionate share will be awarded to each owner. If indivisible or undivided useless leave the farm for use, the economic divide will be held. The concept of divisibility should be evaluated on the specific facts of each case (STS 7 March 2015). The doctrine distinguishes between legal indivisibility equipment and indivisibility.
The legal indivisibility occurs when the division of the thing let her unfit for use, when you lose a lot of value or when the costs are disproportionate to the same.
A common example is the undivided legal situation in which the division of a plot, would plots below the minimum size for building.
In the event that the "co-owners" did not agree to sell the common good or award the contract to one of them with payment based on their right to rest, the property must be paid by auction. The auction is governed by the rules laid down for the division of inheritance.
Given this type of conflict, for the commoner or co, It is preferable to adopt a proactive stance and take the initiative process, notwithstanding that during the same it can reach an agreement between the parties. In case of being sued, the ability to defend convictions are few and the costs are high, considering the value of property. Thus, it is preferable to act as plaintiff, while taking the necessary precautions to prevent the situation can be turned against us.
The main sticking points are:
1.- Prior request: It is important that prior to the filing of the demand is made formally called upon the defendant, in which the possibility of reaching a friendly settlement offer.
2.- Accumulation with divorce: In the process of separation or divorce, annulment, It can simultaneously exert the action of division of the common thing, as set out in Article 437,4,4º LEC.
3.- The division of the common thing does not extinguish the right of use:
(SAP León 5 March 2014). But the third party purchaser, It not is bound by a right of use that is not registered in the Register (SAP Coruna 19 April 2013).
4.- The division of the common thing, does not alter the mortgage: When the property up for auction as a result of the action of division of the common thing, mortgage subsist according to Article 405 the Civil Code and Article. 123 of the Mortgage Law.
5.- The pact does not preclude the undivided output comunero:
The villager who wants out of a co-ownership where there is an undivided pact, You can bring an action for division of common thing urging auctioning (SAP Madrid 23 July 2012).
6.- La división de la cosa común puede realizarse mediante árbitros o amigables componedores (STS 18 February 2014).
7.- If no pending divorce proceedings, competition is for the court hearing the same, not that of the district where the property filed (SAP Barcelona 20 February 2015).
8.- For failure to contribute to the maintenance costs of the common thing, no se priva al propietario de la legitimación para solicitar la división (SAP Málaga 6 October 2008).
9.- The amount is determined by the value of the thing at the time of filing the demand (SAP León 8 October 2009).
Ultimately, son muchos los matices que se deben tener en cuenta a la hora de ejercitar la “actio communi dividundo” o acción para la división de la cosa común.