The division of the common thing

The division of the common thing is a right that each co-owner has and is considered one of the causes of the extinction of the common thing. In addition, the co-owner can exercise it without giving any reason to the other co-owners.

In Catalonia, since it has its civil law, the division of the common thing is regulated in articles 552-9 and following of the Civil Code of Catalonia.

1. What are the causes of the extinction of the common thing?

The community can be dissolved for the following reasons:

1. Division of the thing or common heritage.
2. Meeting a single person of all the rights.
3. Destruction of the common thing or loss of the right.
4. Becoming a particular community.
5. Unanimous agreement or resignation of all co-owners.
6. Expiration of the term or fulfilment of the agreed resolutory condition.

First of all, you must know that if you are a co-owner of an asset or right, you can demand, at any time and without stating your reasons, the division of the object of the community.

Likewise, the co-owners can unanimously agree on the indivision for a term that cannot exceed ten years. A situation may arise in which one of the co-owners is a minor or incapable, and the division may harm him. In this case, a Judge may establish, in a reasoned manner, the indivision for a period not exceeding five years, from which time it will have to be done.

It must be taken into account that the division cannot be requested when the object on which the community falls is a warehouse or premises that are used for parking spaces or storage rooms in such a way that each co-owner has the use of one area or more. of one

Another issue you should know is that the division of the common thing cannot harm third parties who will keep the property. For example, anyone who owns a natural right in the property subject to the division, whether it is a mortgage or a right of easement, will keep it after the division of the same. The same will happen if a third party has rented the property.

2. How is the division of the common thing carried out?

Any co-owners can request the division in two ways, either by agreement of the co-owners to divide the common thing or submit it to arbitration; or, failing this, go to court so that it is the judicial authority which carries out the division.

Suppose the property is a building capable of adopting the Horizontal Property regime. In that case, the CCCat provides that this Horizontal Property regime can be established, and each owner is awarded the private elements, for example, flats, in proportion to their value.

Likewise, the co-ownership situation can be divided by awarding one of the co-owners of the thing the right of usufruct, which will mean that the rest of the co-owners keep the naked ownership of the thing.

Another assumption that can occur is that one of the co-owners is the owner of 80% of the thing or the object of extinction. In this case, said co-owner may demand that he be awarded full ownership of the property in exchange for paying in cash the expert value of the participation held by the rest of the co-owners.

If the property is indivisible or notably detracts in the event of being divided or if it is a question of collections that make up the artistic, bibliographic or documentary heritage, it will be awarded to the co-owner who has an interest. If everyone has an appeal, the asset will be awarded to the co-owner with the largest share, and the lot will decide in the event of equal claim and share. If no co-owner is interested, the property is sold, and the price is shared. It should be noted that the sale does not necessarily have to be made in a public auction, with any alternative form being possible to obtain the highest price.

An assumption that is quite frequent today is the division derived from separation procedures, divorce, annulment or breakup of a stable couple. In these, community assets can be divided considering all or part of the assets as a single division, referring to the provisions of article 232-12 of the CCCat, which establishes that any of the spouses can simultaneously exercise the action of the division of the common thing concerning goods that they have in the undivided ordinary community.

3. Effects of the division of the common thing

The division, as we have already said, is a cause of the extinction of the community, but the effects are different depending on whether it is the co-owners or third parties who have rights over it.

Regarding the co-owners, the division will imply the exclusive attribution of ownership of the property or the right to one of them, being able to request the same at any time and without any reason.

While third parties will imply that they will not be affected by the division of the property, for example, it may be that a mortgage charge has been constituted or that a third party has rented the property. In both cases, the real right and the rent will be preserved after the division and the consequent extinction of the common thing.

4. Conclusions

In summary, if you are a co-owner of an asset, you can demand its division without giving any reason since it is a legally foreseen cause for the dissolution of the asset. The division will imply that the property in question is awarded exclusively to one of the co-owners. If there is no agreement between all the co-owners or it is not submitted to arbitration, it will have to go to court, with the judicial authority carrying out the division of the same.