Many people may find themselves in joint ownership at some point. Stéphanie Swiklinski, a notary graduate, explains the different solutions to put an end to this situation.
How does one end up in undivided ownership?
There are actually two situations. The undivided ownership can be desired. In this case, it is a choice to buy with two or more people under the undivided ownership regime. It is then a conventional joint ownership. This hypothesis is frequent and concerns cohabitants, civil union partners and spouses separated from property who buy a property together. They find themselves owners of a share in the property, which reflects their financial contribution. It is possible to buy half each, a quarter/three quarters... Joint ownership is a relatively simple solution when you want to buy a property, because it does not require any particular formalities, unlike the acquisition through a real estate company.
Undivided ownership can also be suffered. This is the case after a death for example. The heirs find themselves in undivided ownership of the property that makes up the estate, as long as the division has not been made. The same is true for spouses who are jointly owned and who divorce: as long as the community has not been liquidated, they are in joint ownership. This is called legal indivision.
How to put an end to an indivision ?
When you own a house in joint ownership, for example, the simplest solution is to sell it. The co-owners must first agree on the principle of the sale and on the price. Once the property is sold, the price is shared in proportion to the share of each. In the case of joint ownership of an estate, the co-owners may opt to share the property between them by being allocated a lot of the value of their rights. This obviously presupposes the agreement of all, not only on the principle of the division, but also on its terms. The use of a notary will be an obligation in these cases. He alone is authorized to make the land publicity of a real estate property. He will also draw up what is called a liquidation statement with the estimation of the goods, the composition of the lots and the calculations to restore the balance between the co-owners. This is the case, for example, when one of the undivided co-owners has done work on the undivided family home at his own expense.
And when you don't agree, what happens?
The Civil Code states that "no one can be forced to remain in joint ownership". This means that each co-owner has the right to leave the indivision whenever he or she wants. Thus, only one of the heirs is free to decide to sell his share of the property, even to a person "outside" the indivision. He must inform the others in writing, specifying the terms of the transfer (notably the price, the identity of the third party...). The other heirs have priority to acquire the property over the third party. If, on the other hand, no agreement on the principle, on the terms of the sale or the sharing is possible, the undivided co-owners must then refer the matter to the court and ask the judge for a judicial sharing. In the simplest case, the judge will order the partition and the heirs will be referred to the notary. But, if no agreement is possible, it will end up in a judicial partition with a drawing of lots, or even the sale of the goods by auction in inextricable situations. Before this happens, mediation can help resolve the situation amicably and defuse conflicts. Notaries are well placed to help you do this!
Stéphanie Swiklinski