Indivision. What you need to know to avoid divisions

One for all and all for one

The purpose of joint ownership is to manage and benefit from the property together. Each undivided co-owner must contribute to the payment of debts relating to the property. Their contribution is proportional to the share held. In the event of damage to or deterioration of the undivided property, all undivided co-owners are in principle liable. However, if the damage or deterioration is due to the negligence or fault of an undivided co-owner, he or she will be held responsible and accountable. The undivided co-owners have the right to use and enjoy the undivided property. Except when it is decided that one of them will have exclusive use and enjoyment of the property, in which case he or she is liable to pay an occupation indemnity to the other undivided co-owners.
For decision-making, different majority rules apply depending on the type of act. Actions necessary for the conservation of the property (replacing a faulty boiler , re-roofing, etc.) can be decided by a single joint owner, without the agreement of the others. To finance them, he can use the undivided funds he holds, or advance the costs and recover the sums incurred when the property is divided. For acts of administration (selling furniture to pay joint debts, renewing a residential lease, etc.), a two-thirds majority is sufficient. Finally, for acts of disposal (sale, etc.), a unanimous vote of the undivided co-owners is essential.

An agreement is a wise precaution

Poorly prepared or poorly organized joint ownership can be a source of conflict and deadlock. To prevent and avoid conflict, it is advisable to draw up an indivision agreement. This is a contract governing relations between the undivided co-owners. They are free to organize and adapt certain measures provided for by law. But not all. For example, the undivided co-owners may organize the use and enjoyment of the property, lay down their own rules for sharing and reimbursing expenses, appoint a manager, or stipulate exit procedures different from those laid down by law... The contract is a contract governing the relationship between the undivided co-owners.The duration of the agreement may be either fixed (it may not exceed 5 years, although this period may be renewed) or indefinite (in this case, it lasts until partition takes place). The indivision agreement must be drawn up by a notary if it concerns real estate. In this case, it is an authenticated deed published at the Service de publicité foncière (ex conservation des hypothèques). However, even if the indivision does not relate to real estate, it is highly advisable to have the agreement drawn up by a notary to prevent disputes arising from poorly drafted or imprecise clauses.

A successful exit

Living in joint ownership is not always a comfortable situation. As the law states, "No one can be forced to remain in joint ownership". Several solutions are possible. A single heir may decide to sell his share, even to a person "outside" the indivision. He must inform the other heirs in writing, specifying the terms of the sale (price, identity of the third party, etc.). The other heirs have priority over the third party in acquiring the property.

Alternatively, all the undivided co-owners may agree to end the indivision by selling the property and sharing the price. In this case, all parties must agree not only on the principle, but also on the terms and conditions of the division. These are freely determined by the parties concerned (composition of lots, etc.).
If no agreement can be reached on the principle, terms and conditions of the sale or division, the undivided co-owners must take the matter to court and ask the judge either to impose continued indivision for a maximum of five years, or to divide the lots by drawing lots, or to order the sale of the undivided property by auction. But before it comes to that, mediation can break the deadlock amicably and defuse conflicts. And notaries are well placed to help you achieve this.

Marie-Christine Ménoire