A home may be jointly owned, for example, in a marriage or in cohabitants who each own half. If the relationship breaks up or a divorce is filed, one party may have an interest in selling (because of the proceeds) and the other may have an interest in delaying the sale. How is this regulated by law?
Starting point: distribution
The law assumes that “a person need not remain in a joint estate against his will,” so that partition can be claimed through the courts if the joint owner does not cooperate. This applies to all homes, apartments and even any other property that falls into a “community,” the legal word for joint ownership. A shared home of spouses or cohabitants is common, but it can therefore also be a home inherited by the children from deceased parents, or two investors who have bought a property together for rent. The same rules apply to all these cases.
In certain cases, the judge may indeed decide that the distribution should be postponed. The legal basis for this decision is art. 3:178 paragraph 3 of the Civil Code. This article reads as follows: “If the interests of one or more sharers affected by an immediate partition are substantially greater than the interests served by the partition, the court before which an action for partition is pending may, at the request of a sharer, exclude an action for partition on one or more occasions, each time for not more than three years“.
Application in practice
The main rule is that distribution can be enforced by the party who wants to sell and must be cooperated with by a party who prefers not to. This will usually be the person living in the home – perhaps with children – and it may also be that it is relatively difficult for this person to find affordable equivalent housing. If these arguments carry enough weight, then the judge can apply the exception to the main rule. The ownership of the property then remains unchanged for the time being.
Of course, the party who wants to postpone the division has no reason to litigate over the house. That initiative will usually come from the person who does want to sell so that the (sur)value can be paid out. In those proceedings, a counterclaim (counterclaim) or counterclaim can be made on the basis of Art. 3:178 (3) of the Civil Code. Of course, the reasons for the deferral of the distribution must be properly substantiated. The judge will weigh the interests and the lawsuit may end with a judgment postponing distribution for up to three years. That time limit is relative, by the way; in practice it can take even longer before the property has to be sold after all, if only because court cases can take a long time.
Of course, it is also possible to make mutual agreements on whether or not to divide a joint house, on who should pay the expenses and who can continue to live in the house. The statutory provision on deferral of distribution is procedural in nature: the article of law deals with cases in which the parties just now agree among themselves, go to a lawyer and start litigating, so that the judge has to cut the knot.
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