Common Property Division

Co-ownership or condominium, as a situation where multiple people share ownership of a real estate property, is regulated in our Civil Code with key provisions. This general regulation does not exclude other specific ones, such as those provided in the Horizontal Property Law, which addresses situations like homeowners’ associations in buildings.

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

Unlike more modern arrangements, such as timeshare or tourist apartments, the community of goods does not assign specific portions of the property. Each co-owner holds an abstract share of the entire property without physical demarcation of their portion, which can complicate the management and use of the property.

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Shared Ownership

Shared ownership, especially in cases of condominium, is usually a transitional situation. However, this does not eliminate the conflicts that often arise in these cases. For instance, in cases of dissolution of marriage and liquidation of community property, conflicts may arise if there is no agreement regarding the use of the property.

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

Options in Case of Indivisibility

In cases where the property cannot be divided, the law establishes that the parties may agree to sell the property. In the absence of an agreement, other options exist:

Voluntary auction: This option is regulated under the Voluntary Jurisdiction Law, Law 15/2015, of July 2.
Judicial division process: In the event of a disagreement, a judicial process can be initiated to sell the property, either through a public auction or by a notary, if requested by the parties.

The Judicial Process

The judicial process for the division of common property begins with a claim filed by a lawyer. This claim must prove the condition of co-ownership of the property and request the termination of the shared ownership situation. The court notifies the other parties, and if there is no agreement on the valuation of the property, an expert is appointed to appraise it.

Once the property is valued, it is sold voluntarily or compulsorily, and the proceeds are distributed among the co-owners according to their respective shares.

Key Aspects of Condominium

Condominium or co-ownership is not a new concept, but it remains a source of legal conflicts. Some key aspects to consider are:

The right of any co-owner to request the division of the property at any time.
The need for clear, written agreements on 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 cannot agree, the conflict may escalate. In such cases, it is essential to have a lawyer specialized in common property division to ensure the process is conducted fairly and efficiently.

Additionally, it is important to consider the tax implications of the sale or allocation of the property, as these may result in tax obligations for the co-owners. Proper advice can also help minimize the tax impact of these transactions.

Tax Implications of Division

The sale of a property resulting from a common property division may trigger the obligation to pay Income Tax (IRPF) on any capital gain obtained. In some cases, the Property Transfer Tax (ITP) and notarial and registry fees associated with the process may also apply.

Tips for Avoiding Conflicts

To prevent problems, co-owners are advised to establish basic rules for the use and enjoyment of the property from the outset. Measures that can be adopted include:

Drafting a written agreement regulating the use schedule or distribution of income generated by the property.
Requesting the mediation of a neutral third party or a specialized lawyer to reach satisfactory agreements.
Considering the possibility of dissolving the co-ownership amicably before initiating a judicial process.

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

REAL ESTATE LAWYER IN ALICANTE

At Carlos Baño Abogados, we specialize in real estate law and horizontal property. If you need advice to draft statutes, interpret regulations, or resolve conflicts related to tourist rentals, we are here to help you.