La subasta en la división de la cosa común

Auction common thing

The implementation of the action split common thing can be done by voluntary judicial auction

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In this review the entry procedure Voluntary judicial auction for the implementation of the action division of common thing about property.

The action of division from common thing

Are frequent situations where multiple owners do not agree on the fate of a property and have to resort to the courts to exercise Action division of common thing: Heirs, cohabiting, divorced and co-owners who want to sell the farm and receive part of the price corresponding to them.

Article 400 the Civil Code establishes the principle that "No co-owner shall be required to remain in the community. Each of them may at any time divide the common thing. (….)”

Ante la imposibilidad de llegar a un acuerdo amistoso, you must make a court formally called and if it does not bear fruit, request ordinary trial interposes requesting división de la cosa común. We have referred to the action of division of the common thing in various entries in this blog.

That application is directed against the other joint, which normally shall not make opposition to avoid an order for costs, high in these cases handled by the amount.

Once the judgment is final, in theory could produce voluntary compliance, by agreement between the joint owners. Although the most common is that, failing this, the judgment is executed by selling the house at public auction, where foreign bidders may intervene. Following the same, It shall be allocated the amount obtained.

Regulation enforcement through judicial auction voluntary

It is a "non-monetary" execution as set out in Articles 699 and following of the Code of Civil Procedure. However, the Rituaria Act does not contain a specific regulation for the sale of the common thing. Go to the procedure real estate auction enshrined in Articles 655 and following the LEC does not seem appropriate, because in our case, there is a "debtor" hard-pressed not a performer creditor. Therefore, It is the most appropriate application of the regulation of auctions in the Law of Voluntary Jurisdiction, in Articles 108 a 111.

Moreover, the co-owners LJV expected to fix the valuation of assets and conditions of the auction. However, in an "action division common thing" will not normally be agreement between owners. This would make it impossible to go to a record of voluntary jurisdiction.

So things, we have a legal title we want to run: The procedure shall be the judicial auction rules applying LEC and supplementing them with the provisions of LJV.

Auction Application

Article 110 LJV of the content of the application indicated:

Article 110 Request

  1. You will need to request for the record, with the identification and status of the asset or right, which must be accompanied by the following documents:
  • a) Which allow proof of the legal capacity to contract the applicant.
  • b) Those who prove their right to dispose of the object or right auction. In the case of goods or registrable rights, Domain registration certificate and charge shall be accompanied.
  • c) The special conditions under which the auction is to be held and where the valuation of the assets or rights will be collected for auction.
  1. If any tenants or occupants of the property concerned whose alienation, the applicant must identify in their initial application, proceeding in this case, in the manner prescribed in Article 661 of the Civil Procedure Act.

  2. The application may be requested to the court clerk to agree the sale of property or right of individual or entity specialized. Be estimated from, The clerk I agree that sale subject to the provisions of Article 641 of Civil Procedure Act as it is compatible with the provisions of this Title.

Namely, the solicitor, in addition to prove their legal capacity and right to auction, It should provide a Specifications particular, where you must collect property valuation and auction terms. In case of dispute between co-owners of such terms, who will be the Court resolved, applying the rules governing public auction in LEC.

Very often co-owner performer does not provide its "special conditions". Then, the court will be required to rectify. Once submitted the specification, It is admissible demand and will transfer to the other co-owners for claiming what serves his interests on these particular conditions.

In some courts, Counsel is typical of the Administration of Justice requiring the investors to submit a statement of special conditions for auction.

Content special conditions

The special conditions must refer to the following points:

1.- The valuation of property.

2.- Auction lots: In the case of multiple properties, the formation of lots for sale.

3.- Possessory situation of the property: If there are occupants or tenants.

4.- The minimum rate of award.

5.- The possibility of involvement of the co-owners at auction: Although there is no bidder, the co-owners have the possibility of making bids.

6.- The possibility of the co-owners to bid without having entered or obligation that all bidders consigned.

7.- The possibility that owners can give the shot to a third party.

8.- The possibility of the successful tenderer co-owner of record the difference between the total price of the auction and share, plus its share of expenses: Thus, It avoids having to enter the total then make the allocation and the operation is facilitated.

9.- The fate of the deposits of bidders causing bankruptcy auction.

10.- The circumstances in which there will be approval of the auction if the highest bid is less than 50% of the appraised value.

11.- The situation in which the charges remain: There are two options: Or not canceled and the purchaser is subrogated to the same or canceled by the price to be achieved at auction. Here it is necessary to point out that the automatic cancellation of the load generated by the auction does not occur and all subsequent, pues el artículo 674 LEC applies to auctions held in a means for collection, whereas in this kind of voluntary auctions, The procedure is similar to a private sale: Which awards the property is acquired all charges.

12.- Information on outstanding amounts for each of the existing loads: In this way it makes it easier for prospective buyers the valuation of interest you may have auction.

13.- Certification of debts the property owners community.

other specialties

It should be noted that paragraphs 1 and 2 of article do not apply 670.4 the LEC: If the highest bid is less than the appraised price, the executed can not within 10 days, introduce a third party to improve the position or the performer can not request the award by the 70%: There is no "executed" itself and be contrary to the principle of equal co-owners.

It not required to meet settlement of charges Article 666 the LEC, or require creditors and executed to report on the secured loan, as required by Article 657 the LEC.

Therefore, the specification must have forecast all the circumstances that could lengthen the procedure in case of conflict.

Certification domain and loads

Counsel for the Administration of Justice, shall request the Land Registry certification domain and property charges. And Article 111.3 states that the LJV "The Registrar of Property shall issue certification with continuous information through equal and shall state the good side note this fact or law."

Continued information is that the Registrar notify the court of any change of the property subject to certification.

How much does the auction procedure?

Co-owners shall meet the costs of the auction in proportion to their share in the good.

The main expenses are:

  • Expert appraisal, for if the co-owners did not agree on the valuation of assets.
  • Tariffs Property Registry for certification of loads and marginal annotation.
  • Publication in the Official Gazette of the auction listing.

Holding auction

Auction held as "Voluntary auction" through the Auction Portal State Agency BOE, conforming to the provisions of the Civil Procedure Act in everything that has not been provided for in special conditions.

Once the auction held, within forty days, The highest bidder shall state the difference between the deposit and the auction price. If a co-owner, you only need to consign the difference between its quota and auction.

Verified the consignment, Counsel of Justice to issue a decree awarding.

After deducting expenses, sharing amount is achieved, in proportion to the shares of the co-owners.

empty auction

If the auction remain empty, It does not apply Article 671 LEC: The creditor can not request the award of good, since there is no creditor and executed in this type of procedure.

This situation is not regulated. This loophole can be solved by trying other embodiments (auction notarial, or specialized entity) or by performing a second auction in which substantially altered the conditions for sale.

In any case, It is useful to know the practice of the competent court on voluntary auctions for the division of the common thing.

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