The output of the community of property by one of the community

Salida comunidad bienes

We analyze the legal rules governing the sale of one or some of the community members of their share in community property

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Community property concept

Initially, is the Civil Code (CCivil, onwards) which, on article 392, defines what it is a community property, providing that:

"There is community property when one thing or right belongs to several persons undivided".

However, from the point of view of business activity, community property is a kind of partnership in which several people, two or more community members in this case, They have a thing or a right in common, obtaining a lucrative performance, which it is derived from a business that was created with the constitution thereof. Namely, it is when the ownership of property, or right, It belongs to several people in proindiviso, part of a business that is done in common. It is the easiest way to associate for self. Community property does not have legal personality, so it is governed by the Civil Code and the Commercial Code (Crcom, onwards).

With respect to features This type of partnership, we could highlight the following:

i) minimum required two commoners;

ii) the existence of a private contract in the remaining detail the nature of the contributions is needed, and the percentage of participation, each villager;

iii) a minimum share capital is not required, or a minimum contribution, goods can be delivered only, although this can not be done in the case of money or work;

iv) For constitution, the deed will be required when input by community members or immovable property rights;

in) Fiscally, community property is considered an entity that is subject to the special regime for income attribution, although no legal personality, so it is not taxed on the income obtained, but the villagers are those who will have to be done through personal income tax, IS o IRNR, depending on whether they are taxpayers or taxpayers of each of the taxes mentioned.

Regarding responsibility against third parties, of those who choose to be a community property, will personal and unlimited, to the contrary that capital companies, as limited or anonymous, where responsibility is limited to the capital contributed by partners. If, by community property, it fails to comply with the debts that have been contracted, will be the personal assets of each community which comply with these payment obligations.

Form of constitution of the Community Property

To establish it, It has to take into account the need for a document drafted, can be private or public, depending on the type of asset that is input. That document must state both the name of the company, as parts, the registered office, el objeto social, etc.. Once signed this contract, It will be submitted to the Tax Office to request the NIF. No need to enroll in the Companies Register, but in case you want to do it, the document will be made compulsory in deed.

For implementation, They should make a series of formalities, among which can be highlighted, for example, that each community must register in the Census of Employers, Professionals and Retainers, and register in the Special Scheme for Self-Employed (STRAIGHT).

Fiscally, each community will have to liquidate the business tax (IAE) of all economic activities carried, being independent of whether or community property is not required to pay tax on the IAE. It was also taxed by the Transfer Tax and Stamp Duty (ITPAJD), since it levied on the establishment of a company, paying the 1% of the initial capital contained in the private contract or deed, having a term to liquidate, of 30 business days of the execution of the deed.

The constitution of community of property can be made telematically through the Single Electronic Document (DUE), but it is not available in all the Autonomous Communities, for the moment.

Rights and duties of community members

With respect to rights and duties of community members, if we go to the Civil Code, according to articles 392 ff., each community has right to use what they have in common all members of the community property, provided it does not involve decreasing the right, or injury on the property for the rest of them.

Both rights and obligations will be applied in proportion to the participation of everyone in the community property. Namely, both profits, such as charges or expenses, Iran in proportion as they have contributed. Unless otherwise agreed, the percentage of participation of each will determine the distribution of profits have been obtained in the exercise, and the contribution to the costs.

All community members will have access to common property or rights all have contributed, may require all others bear the expenses it incurred, although it is not possible to alter the ordinary without the consent of the other, even may produce benefits or advantages.

Each of them will have to be consistent in their actions individually, having no effect on others, for, as already mentioned in previous paragraphs, community property does not have legal personality.

Last, none of which are part of the community property is required to be part of it permanently, may request action as it deems appropriate division.

To find out how management has to function in a community property, we must turn to the provisions contained in the Civil Code, but always governed supplementarily, prevails because agreement between the parties, in this case, commoners. The general rule is the agreement by a majority, although this type of agreement may vary depending on the act in the case, Provision may be made as majority, unanimity, under the provisions of the article 392 CCivil, "A lack of contracts, or special provisions, Community shall be governed by the provisions of this title ". Namely, the majority rule is dispositive, the parties may establish any form of adoption of management agreements thing in common.

Community Property Management

Is he article 398 CCivil which it establishes the legal regime for the administration of community property, establishing that "For the administration and better enjoyment of the common thing be binding agreements most participants. There will be no majority, but when the agreement is taken by the participants representing the greatest amount of interest that are the subject of the community. "

The same provision also, sets, supplementarily, the rule when most impossible or detrimental to the other parties, stating that "Most if not lead, or whatever this agreement seriously prejudicial to those interested in the common thing, the judge will provide, parte, that apply, even appoint an administrator. When part of the thing perteneciere privately to a participant or some of them, and other common regardless, only it shall apply the above provision. " In fact, the Supreme Court, sometimes, He has legitimized all community members so they can sue to defend community property, eximiendo, therefore, of the necessary joinder. If the judgment is favorable, will take effect for all community members, while, if unfavorable, only affect the commoner that he acted in the process.

Last, the article 397 CCivil states "None of the co-owners may, without the consent of the other, make alterations to the common thing, although they could be advantages for everyone. " Namely, This provision establishes the obligation of unanimity for agreements relating to acts of disposition of the common thing.

Best suited to bring the administration of community property is to appoint one or more administrators, even if, in the absence of such appointment, administration will be performed by any of the commoners.

Extinction community property

Community property, despite not having legal personality, You may cease trading, and extinguished, for, having a transitory nature, and the absence of agreement among the commoners, It prevents the lack of link are forced to remain permanently in the same.

Thus, community property can be extinguished for the following reasons:

1) That community members until they renounce one of them, becoming only or full owner;

2) One of the villagers acquire the parts of others, either by agreement or because of the right of pre-emption of the villagers;

3) A third party acquires all commoners;

4) The common thing is divided, either by division or partition between the commoners.

Sale to a third party comunero

He did not have an obligation to remain in the community property, If a villager decides to stop being part of the same, You can sell your share to someone else, because he owns that percentage of the thing or in community with other community members. However, first of all, You will have to provide their share to the other parties. If I want to buy any of them, you can sell it to a third party itself may want to acquire. If not find a third party who wants to buy, the commoner may request the division of the common thing, so you can order your part.

Emption rights of commoners

The pre-emption rights are preferential acquisition rights of the community members who are part of the community property. Each one of them, You can sell his share to third parties outside the same, even if, others will have a preferential right of purchase for the same price and under the same conditions.

When one wants to sell its share commoners, It is obliged to notify its decision irrefutably, and the conditions of sale. Other community members, within one month, they may exercise their right of first refusal, offering the same amount per share that commoner wants to sell.

For his part, the right of withdrawal born in those cases where the commoner who wants to sell his share, and notify their intention, the, Yes having notified, it has in other conditions, including price. In this particular case, the rest of the commoners, You may exercise their right within three months after they became aware of the fact, or since the transmission is entered in the Register.

Ultimately, what it is intended with both rights, both scoring like emption, It is giving preference to those who are part of the community property of third parties that are alien to it, when any of the villagers want to sell his share.

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