Common Property Division

The co-ownership o condominium, as a situation in which several people share ownership of a real property, is governed by key provisions in our Civil Code. This general regulation does not preclude other specific provisions, such as those set forth in the Condominium Law, which addresses entities such as homeowners' associations in apartment buildings.

Typically, this situation of shared ownership arises from common circumstances: an inheritance, the dissolution of a community property marriage, or the desire to purchase a property jointly. However, relationships between co-owners are not always smooth, as each party’s expectations, needs, and decisions can lead to conflicts.

Unlike more modern forms, such as the shift-based utilization or the vacation rentals, in the community property No specific allocation of shares in the real property is established. Each co-owner holds an abstract share in the entire property, without any physical demarcation of their share, which can complicate the management and use of the property.

Joint Ownership

The joint ownership, especially in cases of condominium, is usually temporary in nature. Nevertheless, it does not eliminate the conflicts that often arise in these situations. For example, in cases involving the dissolution of a marriage and the division of marital property, a conflict may arise if there is no agreement on the use of the home.

The Civil Code provides that no co-owner may be compelled to remain in a situation of co-ownership indefinitely. This means that any co-owner has the right to request the division of the property and to be awarded their respective share. However, when the real property cannot be divided without compromising its nature, the situation becomes more complicated.

Options in the Event of Indivisibility

In cases where the real property cannot be divided, the law provides that the parties may reach an agreement regarding its sale. If no agreement is reached, there are other options:

Sale by voluntary auction: This option is governed by the Voluntary Jurisdiction Act, Law 15/2015, dated July 2.
Judicial Division Proceedings: In the event of a disagreement, legal proceedings may be initiated to sell the property, either through a public auction or through a notary, if the parties so request.

The Legal Proceedings

The legal proceeding for the division of jointly owned property begins with a complaint filed by an attorney. This complaint must establish the plaintiff’s status as a co-owner of the real property and request the termination of the co-ownership arrangement. The court notifies the other parties, and if there is no agreement on the property’s value, an appraiser is appointed to assess it.

Once the property has been appraised, it is sold either voluntarily or through foreclosure, and the proceeds are distributed among the co-owners according to their respective shares.

Key Aspects of Condominium Ownership

The condominium Co-ownership is not a new concept, but it continues to be a source of legal disputes. Some key aspects to keep in mind are:

The right of any co-owner to request the division of the property at any time.
The need for clear, written agreements regarding the use and enjoyment of the property to avoid conflicts.
The Importance of Seeking Specialized Legal Advice to Resolve Disputes Related to the Division of Common Property.

Conflict Resolution

When co-owners are unable to reach an agreement, the conflict can escalate. In such cases, it is essential to have a lawyer who specializes in the division of common property to ensure that the process is conducted fairly and efficiently.

In addition, it is important to consider the tax implications of the sale or forfeiture of the property, as these may give rise to tax obligations for the co-owners. Proper advice can also help minimize the tax impact of these transactions.

Tax Implications of the Split

The sale of real property resulting from the division of jointly owned property may give rise to an obligation to pay personal income tax (IRPF), based on any capital gain realized. In some cases, Property Transfer Tax (ITP) will also apply, along with the notary and registration fees associated with the process.

Tips for Avoiding Conflicts

To prevent problems, it is advisable for the co-owners to establish basic rules for the use and enjoyment of the property from the outset. Among the measures that can be adopted are:

Draft a written agreement governing the schedule of use or the distribution of the income generated by the property.
Seek the assistance of a mediator or a specialized attorney to reach satisfactory agreements.
Consider the possibility of dissolving the co-ownership amicably before initiating legal proceedings.

The division of jointly owned property is a process that, while it can be complex, is designed to ensure that no co-owner is forced to remain in a co-ownership arrangement against their will. With the right approach and the necessary legal advice, it is possible to resolve these conflicts effectively.

REAL ESTATE ATTORNEY IN ALICANTE

In Carlos Baño Law Firm, we are experts in real estate law and condominium law. If you need advice on drafting bylaws, interpreting regulations, or resolving disputes related to vacation rentals, we’re here to help.

Contact us through our website or visit us at our offices in Alicante. Our team of professionals will provide you with personalized and effective solutions.