Dis­con­tin­u­ing the com­mu­nity of prop­erty when co-own­ers dis­agree

Com­mu­nity of Prop­erty or coown­er­ship is where two or more per­sons are vested with the own­er­ship of an un­di­vided share of one and the same thing, or of one and the same right.

The Malta Independent on Sunday - - DEBATE & ANALYSIS - Joseph Calleja

Dr Joseph Calleja is an Ad­vo­cate by pro­fes­sion prac­tis­ing in Malta

Acom­mon ex­am­ple would be when a cou­ple de­cide to pur­chase an apart­ment to­gether or when a house is in­her­ited by si­b­lings. This im­plies that the as­set in ques­tion would not be sus­cep­ti­ble to the ex­clu­sive use and en­joy­ment by an in­di­vid­ual co-owner to the ex­clu­sion of the other/s. In ef­fect, the law sets out that each co-owner is en­ti­tled to make use of the com­mon prop­erty on con­di­tion that it is used for the pur­pose it is des­tined to and that such use does not pre­vent the other co-owner/s from en­joy­ing the com­mon prop­erty ac­cord­ing to their rights.

While the state of co-own­er­ship can be brought about vol­un­tar­ily, such as when two or more per­sons de­cide to jointly pur­chase a prop­erty, this state can also arise in­vol­un­tar­ily, the most com­mon oc­cur­rence be­ing when prop­erty de­volves to var­i­ous per­sons through a tes­ta­men­tary dis­po­si­tion. By way of a gen­eral ob­ser­va­tion, it could be noted that the law is more in­clined to favour in­di­vid­ual own­er­ship rather than en­cour­ag­ing co-own­er­ship. In fact, the law caters for var­i­ous ac­tions that are in­tended to termi- nate the com­mu­nity of prop­erty.

One such ac­tion that is of­ten re­sorted to is that found in Ar­ti­cle 495A of the Civil Code, Chap­ter 16 of the Laws of Malta. This ac­tion is mainly in­tended to bring about the ter­mi­na­tion of the com­mu­nity of prop­erty by re­quest­ing the Court to au­tho­rise the sale of a prop­erty when the co-own­ers fail to agree. It is worth noth­ing that this ac­tion can be re­sorted to with re­spect to both mov­able and im­mov­able prop­erty. The leg­is­la­tor’s ob­jec­tive in pro­mul­gat­ing this rem­edy was to avoid hav­ing prop­erty, in par­tic­u­lar im­mov­able prop­erty, be­ing left va­cant due to dis­agree­ment be­tween its own­ers. In or­der for this ac­tion to suc­ceed, there are six cu­mu­la­tive re­quire­ments that must be com­plied with. Firstly, the prop­erty in ques­tion should not be one that falls within the am­bit of a con­do­minium or be oth­er­wise sub­ject to nec­es­sary com­mu­nity of prop­erty. Sec­ondly, the state of co-own­er­ship should have been in ex­is­tence for a pe­riod of at least three years, which prior to 2016 was a 10-year pe­riod. Thirdly, none of the co-own­ers should have in­sti­tuted an ac­tion in Court for the par­ti­tion of the prop­erty that is held in com­mon. The fourth re­quire­ment is that the coown­ers failed to agree with re­gard to the sale of the prop­erty. The fifth is that the ma­jor­ity of coown­ers agree to sell. The sixth and last re­quire­ment is that the court needs to be sat­is­fied that none of the dis­agree­ing coowner/s will be se­ri­ously prej­u­diced by the sale of the prop­erty. If the Court is sat­is­fied that these re­quire­ments are met, it will pro­ceed to au­tho­rise the sale in ac­cor­dance with the wish of the ma­jor­ity of co-own­ers.

The co-own­ers re­quest­ing the au­tho­ri­sa­tion of the Court in their ap­pli­ca­tion also have to present a dec­la­ra­tion that they agree to the sale to­gether with a prospec­tus show­ing the num­ber and the value of their share from the prop­erty. More­over, the terms and con­di­tions un­der which the sale is to take place should be brought to the at­ten­tion of the Court and an in­di­ca­tion of the date and cir­cum­stances when the co-own­er­ship arose should also be pro­vided to­gether with the ap­pli­ca­tion.

In a sit­u­a­tion where there are nu­mer­ous co-own­ers, it is a com­mon oc­cur­rence that some of them might not be known or might be dif­fi­cult to trace. In such in­stances, one of the co-own­ers fil­ing the ac­tion is to con­firm this fact on oath and the ap­pli­ca­tion is then served on cu­ra­tors that are ap­pointed by the Court to rep­re­sent their in­ter­ests. Within 20 days from ser­vice of the acts, the dis­si­dent co-owner/s as well as the cu­ra­tors may op­pose the sale by claim­ing the se­ri­ous prej­u­dice that they or the co-own­ers, rep­re­sented by them, may suf­fer be­cause of the sale. In the Court’s de­lib­er­a­tion on whether the sale will be of se­ri­ous prej­u­dice to any of the co-own­ers, it will take into ac­count all the rel­e­vant fac­tors in­clud­ing the value of the prop­erty and the price of the sale and may also ap­point ex­perts to as­sist it in the ap­praisal of the prop­erty.

If the Court de­cides that the sale should go through, it shall de­ter­mine the price or any other con­sid­er­a­tion for the sale and shall fur­ther set the time, date and place when and where the trans­fer is to take place. In cases of im­mov­able prop­erty, it shall also ap­point a no­tary to pub­lish the deed of sale and ap­point cu­ra­tors to rep­re­sent any of the co-own­ers who fail to ap­pear for the pub­li­ca­tion of the deed or other in­stru­ment of trans­fer.

Newspapers in English

Newspapers from Malta

© PressReader. All rights reserved.