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Unit 5. Co-ownership and Undivided Community on Things
Community Situations
- UNDIVIDED CO-OWNERSHIP 1 (art. 552-1 to 552-12 CCCat)
The undivided co-ownership regime is governed by arts. 392 to 406 of the CC.
- For movable and immovable objects.
Hay dos o más personas que tienen la propiedad de la cosa. Por ejemplo: una pareja decide comprarse un apartamento
- CONDOMINIUM (HORITZONTAL PROPERTY) 2 (art. 553-1 to 553-32 CCCat)
Estamos hablando de la propiedad horizontal, en Inglaterra (common hold). Condominium no es condominio en español. En España condominio se refiere a la undividied community on a thing.!!
Sin embargo, en el CCCat se distingue claramente entre:
▲ Simple property in condominium (art. 553-33 to 553-47): applied in the co-ownership of an apartment. ▲ Complex property in condominium (art. 553-48 to 553-52): applied when the condominium is built in different elements (complex situation). ▲ Property in condominium by plots (parcela) (art. 553-53 to 553-59): applied when there’s an extended property (development units).
In other parts of Spain, the condominium regime is governed by the Horizontal Property Act (LPH).
- Muchos propietarios, apartamentos y locales. Hay zonas públicas y privadas. Se paga una cuota por las zonas comunes.
- Only for real state property (immovable assets).
- (^) TIMESHARING 3
También conocido como multipropiedad. Regulado en los art. 554-1 to 554-8 CCCat.
- A co-owner is entitled to make us of the asset during a certain period of time (minimum a week).
1 Comunidad ordinaria indivisa 2 Propiedad Horizontal 3 Comunidad por turnos: comparten la propiedad de una cosa por turnos
- COMMUNITY ON PARTY WALLS 4 (art. 555-1 to 555-8 CCCat.)
- Wall that has been built in the border/limits of two attached plots of land. Dos personas tienen que construir en dos propiedades adyacentes de tierra, en vez de hacer dos fundamentos, compartirán los fundamentos de la casa. Pides a los constructores la construcción de unos cimientos comunes, que serán usados por los dos vecinos. El CC actual ya no recoge este derecho, así que dependerá del acuerdo de las dos partes. ROMAN VS GERMANIC COMMUNITY TYPE ROMAN COMMUNITY TYPE Co-ownership by shares 5. In this type of community there are several co-owners who have shares of a determinate. Permite a sus miembros la posibilidad de disolver la comunidad. Acción de división, permite la partición de la comunidad.
This is the type that was eventually introduced into the CC in 1999.
Example:
a) A couple has purchased an apartment.
b) Two partners have brought certain premises to locate there their new law offices.
GERMANIC COMMUNITY TYPE
Co-ownership by common hand 6. This is an old-fashioned type of ownership in common that still exists in some remote areas in Spain.
Se basa en una Antigua tradición alemana, tipo de propiedad en que los miembros no pueden disolver la comunidad. Pueden vender la propiedad y otra persona vendrá en su lugar. Comunidad alemana integrada por un cierto número de personas, pero no puede ser aumentado, suelen ser el mismo número. No tienen la acción de partición de cosa común.
Example: Being an owner of a farm in a specific town where grazing commons (bienes comunes de pasturaje) are available to its actual residents.
This type of community will last forever the co-owners cannot ask the judge to put an end to this type of ownership, except if there’s an unanimated vote of all the owners.
Origin 1830 the government wanted to expropriate the properties in hands of the church and sell them to the people living in that areas. This way, the properties cannot be sold again (dead hands)
4 Pared medianera 5 Comunidad por cuotas 6 Comunidad en mano común
There is an undivided community where ownership of a thing or right belongs pro indiviso to several people: several people have right upon the same thing, so the object can be owned by several people at the same time.
In the absence of a contract or of specific regulations, the undivided community is governed by the provisions of title III of book 2 of the CC the rules established by the parties will prevail, but if they don’t establish specific rules, the CC rules will be established. specific rules, the CC rules will be established.
Art. 392 SpCC
“There is an undivided community where ownership of a thing or right belongs pro indiviso to several persons.
In the absence of a contract or of specific regulations, the undivided community is governed by the provisions of title III of book 2 of the SpCC.”
Art. 551-1.1 CatCC
“There is community when two persons or more jointly and concurrently share the ownership of the property or another real right over the same property or the same assets.”
Requirements
- There is only one object.
- There are several owners (of the same object): at least 2 owners.
- (^) There are several title holders which the same rights’ content do have: the content of the rights is, from a qualitative point of view, the same.
- There is only one single juridical relationship.
CO-OWNERSHIP
Ownership of the same property held jointly by two or more title holders, each of whom is privately vested with a share7(also called cuota de participación) of the right.
7 Cuota de participación
The legal regime applicable to co-ownership is applied by analogy to other rights in common by more than one title holder. For example, Co-usufruct, co-superficies, co-emphyteusis, etc.
The codal regime provisions governing co-ownership are set forth at
▲ (^) Articles 551-1 to 552-12 CatCC ▲ Articles 392 to 406 SpCC
UNDIVIDED CO-OWNERSHIP
If the thing is not itself materially divided it belongs to each co-owner as an abstract share of the whole thing. Undivided co-ownership could be ordinary or forced.
Conceptual approach
Undivided co-ownership is a form of ownership on a thing that cannot be materially divided among the co-owners.
El juez decidirá de acuerdo con estas previsiones, no es libre de hacer lo que quiera. Según lo que dice la ley española habrá una subasta pública a la que todo el mundo puede ir y aquel que ofrezca una cantidad mayor se quedará la propiedad. Lo que se obtenga de esa subasta será repartido entre los co-propietarios. Pero en subasta pública un tercero también puede adquirir la propiedad.
Según la ley catalana, el co-propietario con una porcentaje mayor de propiedad será la que se quede con la propiedad. En caso de que ambos tengan el mismo porcentaje de participación, el que demuestre un mayor interés será el que se quede con la propiedad. Si ambos tienen el mismo interés, la propiedad se atribuirá por suerte.
How can it be created?
Undivided ownership may arise from:
- Contract
- (^) Succession
- Court decision
- by operation of law
Clarification
- It is the right of ownership itself that is divided.
- (^) Each co-owner has an ideal share.
Article 552-1. Concept
“1. Undivided ordinary community involves the existence of as many rights as there are co- owners. The right of each co-owner is limited by the rights of the other co-owners.
_2. Each right determines the quota of participation in the use, enjoyment, performance, expenses and liabilities of the community.
- The rights in the community and, therefore, the quotas are presumed equal except if it is proved to the contrary.”_
Constitution of a community upon a thing
Article 552-2.
The community can be constituted by means of:
4.a. Legal business, whether by joint acquisition of the property by more than one person or by the real right over which it devolves, whether by disposal of an undivided part with reservation of another part. 4.b. Usucapio 4.c. Provisions for death. 4.d. Law.
Individual rights over the community
Article 552-
“1. Each co-owner may freely hold his or her right in the community, dispose of it and encumber it.
2. Each co-owner may hold the indeterminate object that will be his or hers at the future time of division. In this case, while the situation of coparceny lasts, the acquirer does is not part of the community and, therefore, may not demand the division”
Article 552-4. Rights of acquisition
1. The disposal for a financial consideration of the right of co-owners in favour of third parties outside the community, except if otherwise agreed in the title of constitution, grants to the others the right of pre-emption to acquire it for the same price or value and on the conditions agreed therefor.
2. The co-owners who act to make the transfer must notify the other co-owners, in an irrefutable manner, of the decision for disposal, and the circumstances of the transfer. The pre-emption can be exercised within the term of one month counted from the time when the notification is made.
If there is no notification or if the transfer is carried out for a different price or in different circumstances from that stated, the pre-emption involves buyout, which can be exercised within the term of three months counted from the time when the other co-owners know of the disposal and its circumstances or from the date when the transfer was recorded in the corresponding register.
_3. If more than one co-owner acts to exercise the pre-emption or buyout, this will occur in proportion to their respective rights in the community.
- The right of pre-emption and the right of buyout can be surrendered and the title of constitution of the community may exclude them. If the community has the aim of property or another real right over real estate property, the early exclusion or surrender can only be done in a public deed._
Administration and system for adoption of agreements
Article 552-
_1. The administration of the community corresponds to all co-owners.
- The majority of the co-owners, according to the value of their quota, agree the acts of ordinary administration, that bind the dissident minority.
- The acts of extraordinary administration are agreed with the majority of three quarters of the quotas. If imposed by law, these can be taken by any co-owner, even with the opposition of the others, with a right to compensation and to the legal interests accrued from the time they were claimed.
- The dissident co-owners who consider themselves prejudiced by the agreement of the majority can turn to the legal authority that can resolve and even appoint an administrator.
- The liability of the co-owners for the obligations resulting from their administration is jointly bound proportionally to their respective quotas.
- Acts of disposal are agreed unanimously._
TERMINATION OF CO-OWNERSHIP
Winding up (Article 552-9 CatCC)
The community is wound up for the following reasons:
_3. If any of the co-owners is a minor or incapacitated and the division may prejudice them, the legal authority can reasonably establish the coparceny for a term not longer than five years.
- Division cannot be demanded when the object on which the community devolves is awarehouse or premises used as a car park or lumber rooms, so that each co-owner has the use of one or more places, except if previously agreed to change the use and this is possible._
Procedure of division (Article 552-11 CatCC)
_1. If they do not agree to divide the community or to submit the division to arbitration, any of the owners can request the legal authority to make the division.
- If the property is suitable for adopting the system of property in condominium, this system can be established by awarding the exclusive elements proportionally to the rights in the community, and compensating the surplus in cash, which in no circumstances has the consideration of surpluses from the award, distributing the works and the expenses required proportionally.
- The division can be made by awarding to one or more co-owner the real right of usufruct over the property that is the object of the community and awarding to another co-owner or co- owners the bare legal title.
- The co-owner who is among the four Oifths of the quotas or more can demand the award of all the property that is the object of the community, paying in cash the expert valuation of the participation of the other co-owners.
- The object of the community, if it is indivisible or undoubtedly loses value on division, or is a collection that includes artistic, bibliographical or documentary heritage, is awarded to the co- owner who has an interest therein._
- If there is more than one, to whoever has the largest participation. In the event of equal interest and participation, it will be decided by chance.
- The successful bidder must pay the others the expert valuation of their participation, which in no circumstances can have the consideration of price or surplus from the award.
- _If no co-owner has an interest, it is sold, and its price shared out.
- In the procedures of separation, divorce or annulment of marriage, the ordinary communities between spouses can be divided considering as one single division the whole or part of the property subject to this system, in accordance with Article 43 of the Code of the Family. The same criterion is applied in cases of de facto separation and the rupture of unmarried couples._
Effects of the division
Article 552-12 CatCC
_1. The division attributes exclusively to each successful bidder the property of the property or right awarded.
- The division does not prejudice third parties, who wholly preserve their rights over the object of the community or those that result after the division.
- The owners of credits against any of the co-owners can concur to the division and, if carried out in abuse of their rights, contest but not impede it.
- The co-owners are bound reciprocally and in proportion to their rights to compensation for eviction and hidden vices._
Undivided co-ownership: before and after the partition of the thing
In some other cases the object held in common might not be properly divided.
In this cases physical, economic or legal reasons may apply.
What could you do in such a case?
▲ Read the procedure established in the Code (CC/CCC) for allocating the right of ownership to one of the former members of the community in cases in which the object held in common cannot be divided for the stated reason.
▲ Who can obtain the object and under which conditions?
- Make sure you see the distinction between the SpCC mechanism and the CatCC rules for allocating the object held in common to one of the former co-owners
Condominium Law 8 (Horitzontal Property Regime)
Legal system of property in condominium
Definition
Article 553-1 CatCC
1. The legal system of property in condominium confers on proprietors the right of exclusive property over the exclusive elements and in community with the others in common elements.
8 Propiedad Horizontal
- The quotas of participation corresponding to the exclusive elements are specified in hundredths and are allocated proportionally to their surface areas, taking into account the use and destination and other physical and legal data of the property comprising the community.
- As well as the general quota, special quotas for particular expenses can be established.
- The quotas are determined and modified by unanimous agreement of the proprietors or, if this is not possible, by the legal authority if the laws or bylaws 10do not establish otherwise.
10 Estatutos
