Rules ap­pli­ca­ble in par­ti­tion of com­monly owned prop­erty

Manila Times - - NEWS - PERSIDA ACOSTA Edi­tor’s note: Dear PAO is a daily column of the Pub­lic At­torA­costa may be sent to dearpao@ mani­latimes.net

DEARPAO,

My brother and I in­her­ited 30 square me­ters of land where our an­ces­tral house is erected. I am liv­ing in the house and my brother has al­ready set­tled in Taguig City( Metro Manila) with his fam­ily since he is al­ready mar­ried. Last month, my brother came tome and de­manded the par­ti­tion of our an­ces­tral house. I re­fused to give into his de­mand be­cause if we par­ti­tion the prop­erty, it will re­sult in the de­struc­tion of our an­ces­tral house, which has a sen­ti­ment al value tome. with bar an gay( vil­lage) author­i­ties, and dur­ing our con­fronta­tion, I of­fered to buy his share on in­stall­ment ba­sis but he re­fused. He main­tained that I should pay him in full be­cause he is in dire need of money. What are my­op­tion­shere?

Brandy

Dear The Brandy, gen­eral rule that is pro­vided un­der Ar­ti­cle 1082 of the New Civil Code of the Philip­pines states, “Ev­ery co-heir has a right to un­less the tes­ta­tor should have ex­pressly for­bid­den its par­ti­tion, in which case the pe­riod of in­di­vi­sion shall not ex­ceed twenty years as pro­vided in Ar­ti­cle 494. This power of the tes­ta­tor to pro­hibit divi­sion ap­plies to the le­git­ime. xxx xxxx xxxx”

Based on the this pro­vi­sion, your brother has the right to de­mand the par­ti­tion of the prop­erty that you co-own. But please be guided by an­other pro­vi­sion of law that lim­its the right of the coowner with re­spect to the phys­i­cal divi­sion of the sub­ject prop­erty, this is found un­der Ar­ti­cle 1086 of the same code which states:

“Should a thing be in­di­vis­i­ble, or would be much im­paired by its be­ing di­vided, it may be ad­ju­di­cated to one of the heirs, pro­vided he shall pay the other the ex­cess in cash.

“Nev­er­the­less, if any of the heirs should de­mand that the thing be sold at pub­lic auc­tion and that the strangers be al­lowed to bid, this must be done.”

In your case, phys­i­cal divi­sion of the thing owned in com­mon can­not be made, be­cause it will im­pair the prop­erty. If par­ti­tion will pro­ceed, it will be sub­di­vided into smaller con­struc­tion of a new house. Since you want also to pre­serve the fam­ily’s an­ces­tral home, you may of­fer your brother to ad­ju­di­cate to your­self the prop­erty sub­ject to the pay­ment of his cor­re­spond­ing share in cash or in in­stall­ment ba­sis de­pend­ing on your agree­ment. Oth­er­wise, it will be sold and the pro­ceeds will be di­vided among yourselves.

We hope that we were able to an­swer your queries. Please be re­minded that this ad­vice is based solely on the facts you have nar­rated and our ap­pre­ci­a­tion of the same. Our opin­ion may vary when other facts are changed or elab­o­rated.

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