A co-owner refuses to sell. Can co-ownership be ended against their wishes?

An inherited house occupied by one sibling. Land where one co-owner wants to sell and the other does not. A flat bought with a partner who has since moved away. The common difficulty is that one person cannot dispose of the jointly owned property alone, and without the others’ cooperation it cannot be dealt with sensibly either.

Try agreement first

Co-owners may agree to terminate co-ownership and settle their mutual positions. If the jointly owned asset is immovable property, the agreement must be in writing (Section 141(1) of the Civil Code). Each co-owner must also provide the others, on request, with written confirmation of how they settled if the agreement was not in writing (Section 141(2)).

An agreement is usually quicker and offers greater flexibility in structuring instalments, the due date for a balancing payment or reciprocal exchanges of shares in several properties. Nor is a court generally prohibited from allowing instalments or a longer period for performance: under Section 232 of the Code of Civil Contentious Procedure, these depend on individual justification and the circumstances of the case and are not an automatic entitlement.

When agreement is impossible

If no agreement is reached, the court terminates and settles co-ownership on the application of a co-owner. It takes account of the size of the shares and efficient use of the property. If division is not reasonably feasible, the court awards the property to one or more co-owners against reasonable compensation, taking account of efficient use and a co-owner’s violent behaviour towards the other co-owners. If none of the co-owners wants the property, the court orders its sale and divides the proceeds according to shares.

— Section 142(1) of the Civil Code (unofficial translation)

The order is binding and determines what the dispute is actually about:

1. Physical division. Available only if “reasonably feasible”. Often workable for land, generally not for a flat; for a family house it depends on the building’s technical layout.
2. Award against reasonable compensation. The property goes to someone who wants it and can pay out the others. The court considers efficient use and expressly also violent behaviour towards other co-owners, an important argument in family disputes.
3. Sale and division of proceeds. Only if nobody wants the property. Often the worst result for everyone, as a forced sale generally achieves less than market value.

Any co-owner may apply. You do not need a majority or the others’ consent.

When the court will refuse the application

For reasons deserving special consideration, the court will not terminate and settle co-ownership by awarding the property against compensation or by selling it and dividing the proceeds (Section 142(2)). This exception is rarely applied, but particular family circumstances can make it decisive. An applicant should allow for it; someone opposing settlement should be able to substantiate it.

When dividing property, the court may also create an easement over a newly created property for the benefit of the owner of another newly created property (Section 142(3)), typically a right of way or access to a well.

Day-to-day management in the meantime

While co-ownership continues, management decisions are taken by a majority calculated by share size. If votes are equal or no majority or agreement is reached, the court decides on the application of any co-owner (Section 139(2)). If an important change to the jointly owned property is involved, outvoted co-owners may ask the court to decide (subsection 3).

However, all co-owners are jointly and severally entitled and bound by legal acts concerning the jointly owned property (Section 139(1)). The majority therefore decides on management, not a sale.

Selling a share as a last resort

You may transfer your share separately, but the other co-owners have a right of pre-emption unless the transfer is to a close person (Section 140); see must I offer my share to the other co-owners?. A share also sells for significantly less than its proportionate value in the whole, and the buyer is often an investor with whom the others find co-ownership even harder. We therefore recommend considering this only when neither agreement nor settlement is viable.

Our approach

We start by reviewing the title record, shares, encumbrances and existing use, then explain which of the three settlement methods is realistic in your case and what it means for the price. We prepare the agreement, including Land Register registration; if agreement is impossible, we file the application and take on court representation. We manage the whole matter through settlement of co-ownership. If the parties agree to sell the whole property jointly, this is followed by buying and selling land or preparation of a house or flat agreement.