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An end to co-ownership ⚖️

May 16, 2024

There is said to be “property in common, or co-ownership, when two or more people simultaneously hold the right of ownership over the same thing”, under the terms of the rule contained in Article 1403(1) of the Civil Code.

Article published by Portuguese Times, Correio dos Açores, Voz de Portugal (Montreal) and Correio da Manhã (Canada) – May 2024

This acquisition in common is often preceded by a property sharing process following the dissolution of the marital relationship, either by the death of one of the spouses or by divorce, where if there is no agreement on the property to be shared, it is awarded to the heirs or ex-spouses in proportion to their shares, and they become joint owners, assuming that “the rights of the consorts or joint owners over the common property are qualitatively equal, although they may be quantitatively different; the shares are, however, presumed to be quantitatively equal in the absence of any indication to the contrary in the constitutive title. “, under the terms of paragraph 2 of the same rule.

This is often the case in the Portuguese legal system when assets are awarded in proportion to their shares to the heirs in an orphanage inventory process, which used to be compulsory, when the heirs were minors at the time of the opening of the succession and, due to their inability to pay the fees to the heirs, they became owners of the assets in exact proportion to their shares, thus becoming co-owners following the award.

It is not compulsory for co-owners to remain in this indivision, but they can request a division, which can be done either amicably or under the terms of the law of the case.

In fact, any co-owner who wishes to “… put an end to the indivisibility of the common property may request, in a proper action for the division of the common property, in confrontation with the other consorts, that, once the respective shares have been fixed, the common property be divided in substance or adjudicated or sold, with distribution of the respective value, when it is considered indivisible …”. The procedural rules for dividing the common property are contained in articles 925 to 929 of the CPC and must be registered, in accordance with the provisions of article 3(a) of the Land Registry Code.

Thus, if there is no dispute as to the co-ownership and shares relating to the assets identified in the initial petition, nor any other evidentiary acts or other steps are requested or ordered by the Court, including an attempt at conciliation, the shares are fixed and a conference of interested parties is held with a view to the award and, in the absence of agreement between the interested parties present, the award is made by lot.

It follows from the law that if the property is indivisible, it can be awarded to one of the parties by agreement, with the remainder being paid in cash. In the absence of an agreement, the property will be sold, and the consorts can bid for the sale, thus putting an end to this system of co-ownership. the co-ownership regime existing between the consorts.

Judith Teodoro,