Procedure for the extinction of the pro- indiviso

Condominium or co-ownership consists of holding the dominion or ownership of a common thing, that is to say, a property belonging to two or more persons jointly in a community of property.

The extinction of the situation of co-ownership is mainly regulated in articles 400 to 406 of the Civil Code, with article 400 providing that no co-owner shall be obliged to remain in the community and any of them may request the division of the common thing at any time, in this case requesting the extinction of the condominium or extinction pro indiviso.

If the property in co-ownership is divisible, it may be divided among the co-owners; however, when it is indivisible, as for example a house, the co-owners may agree to award it to one of them, compensating the others for the economic value corresponding to their share, or it may be sold and its price distributed among the different owners.

The procedure of division pro indiviso can be done, by agreement between the interested parties, by appointing arbitrators to carry out the division or, if no agreement is reached, through a judicial proceeding by means of the action of division of common things.

With respect to the judicial procedure for the extinction of the joint tenancy, this is initiated by means of a lawsuit and is carried out through the ordinary procedure, with its corresponding prior hearing and subsequent trial, in which each party may argue what it deems appropriate.

Once the ordinary procedure has been concluded and the property has not been awarded to any of the parties, an executive procedure is opened and an expert appraiser is appointed to determine the value of the property and put it up for sale. If no buyers appear or those that do appear are rejected by any of the parties, the property will be sold at public auction, where the co-owners may bid for the acquisition of the property. (if you want to know more about the judicial auction click here).

A common example of extinction of condominium finalized by means of judicial auction of the property, occurs in the liquidation of the community property regime after a separation or divorce, when the common property to be divided is a house.

This solution has been endorsed by the Supreme Court in its recent Judgment 591/2021 of September 9, by virtue of which it was considered that before the manifestation of both spouses of not wishing the attribution of the community property, not having economic availability to satisfy to the other party the compensation in cash of the acquisition of the property, it does not make sense to impose to one of them the adjudication, as it did the first instance judge, it does not make sense to impose the adjudication to one of them, as the first instance judge did, so that the most convenient remedy is to resort to the sale of the property in public auction and to distribute the product to 50%, which is also one of the forms that the law includes for the liquidation of the indivisible goods.