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Legal methods of selling common property

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What is common property?

“Common property is undivided land that is shared between two or more people and the joint owners participate in that property without their ownership being clear.” In fact, it is a shared financial property that is distributed; That is, legally, the shares of the partners are known and certain, but it is not good from a geographical point of view, and they divide the property bit by bit.

In legal terminology, common property refers to property that is shared by many people and is used in opposition to private property. In the definition of a company in Article 571 of the Civil Code, it is stated: A company is a divided set of rights of multiple owners in a single object.

How to divide the common property (allocation, adjustment and rejection)

The division of common property and the subsequent purchase and sale of common property can be associated with legal challenges. Because according to the law, all owners have a share in different parts of a common property. This means that the share of each owner is scattered in different parts of the property.

For this reason, determining the amount of the owners’ share and separating it sometimes becomes a complex legal process that may even lead to property lawsuits.

First of all, the legislator has empowered the owners themselves to agree with each other and divide the property in a way that all owners are satisfied; But if for any reason there is no such understanding between the owners, then each of the owners who wants to divide the common property can force the other partners to agree to the division with the help of the law and does not need the partner’s permission to go to court; But what method does the law use to divide common property?

In response, it should be said that depending on the type of property, the court divides the common property between the owners in one of the following three ways:

  • Divided by the method of secretion

If the property is in such a way that the share of each partner can be determined accurately and equally, then division by separation method is used. This method is mainly used for properties that can be divided into equal parts.

  • Divide by adjustment method

For properties that do not have the same components and cannot be divided into equal parts, their financial value is considered for dividing the property between the partners; That is, in a particular property, 200 meters of a part of the property may have a financial value equal to 350 meters of another part of the same property. In this situation, instead of division based on area, division is done based on financial value.

  • Division by rejection method

Sometimes it happens that one of the partners gets a share of the property whose financial value is lower than the share of the other partners and the property cannot be divided equally in terms of area or financial value. In this situation, the other partners must pay the difference in the value of the share to the partner who won the least share so that they all have the same share of the property.

Common property deed

According to the definition of the civil law, the ownership document is one of the official documents, which is the most important document because it is valid for all people and all official authorities must give it credit; But in custom, it is called the registration of ownership document, and it is not an official document, and as a result, it lacks the special effect of an official document that is valid without a court order, for example, by presenting ownership documents, it is not possible to issue an order to evacuate or dispose of property.

Types of documents in civil law and registration

The civil law divides documents into two categories, normal and official, which have definitions for each:

  • Documents that have been registered in the Registry of Deeds and Real Estate.
  • Documents that have been registered in official notary offices.
  • Documents prepared by other official authorities provided that the regulator has the authority and the document is prepared according to legal standards.
  • A normal document, which is customary to be drawn up by one of the official agents, but the official does not have the authority to draw up the document or has not made the legal arrangements for drawing up the document.

If the said document is normal, it is signed by an official. The joint ownership document is an official document in terms of the civil law because it has been registered in the registry office, but it is not considered an official document in the registration law.

What is the difference between an official civil law document and an official registration document?

This document is enforceable without a court order, and if there is a dispute, error or mistake in its arrangement, as the case may be, in the General Administration of Document Affairs of the Registration Organization or the supervision of the Board and Council, the official document is enforceable without a court order. If it is an official document of civil law, such as a birth certificate, which is prepared by other government officials, it cannot be submitted to the supervisory board or is not valid.

How is buying and selling common property?

“Common property is common property that is owned and shared by several parties.” If the partners do not agree with the termination of the partnership, those who have made such a decision must file a legal petition, and the subject of their petition is the request for an order to sell the joint property.

In the sale and transfer of common property, two points are taken into account:

  1. Before registration, the common property is transferred.
  2. After registration, the common property should be handed over.

Transfer before property registration

According to Article 114 of the Registration Law, “whenever the joint property is registered by several persons and is transferred to one person before the registration of the property, it is registered in one place under the name of transfer, mentioning the names of the applicants in whose name the property has been advertised and transferred, and the document Ownership of the entire property is issued.”

Transfer after property registration

According to Article 11 of the Regulations of the Registration Law, “whenever the common property is transferred to one person as a result of transfers, the previous ownership documents are invalid and a new ownership document is prepared.” According to Article 583 of the Civil Code, each partner can transfer his or her share to a third party without the consent of the other partners.

In addition, according to Article 104 of the Registration Law, when all or part of the registered property or rights are transferred to the same property, the transaction document is recorded in the notary and its summary is recorded in the register. The Real Estate Registry Office has registered the real estate office.

Important points of the lawsuit for ordering the sale of common property

If the property or immovable property, regardless of whether it is an apartment, land or shop, has multiple owners, they are divided into two main categories: joint and exclusive.

Common property is property in which the amount of each owner’s share is known and the extent and limits of his share are not specified. In this situation, each of the owners has a share in all the components of the property, for example, if two people jointly own an apartment, and all three dongs or shares of 50% of the components and parts of the apartment belong to both of them equally.

Another type of joint ownership is shared ownership, in which each of the parties and partners has a certain share. For example, if three people share a 300-meter plot of land and their share is equal, depending on the circumstances, it can be divided by agreement or non-agreement by requesting an exception from the civil registry office or the court.

After the share is issued, its limits are determined and they can even take ownership of their share based on the six dong document.

If it is a common property that is shared between several people, regardless of whether it is due to the division of inheritance or an optional transaction, and there is no possibility of agreement between all the partners for the sale or the method of possession, each of the partners, regardless of the amount of the share, has the right to refer to the court. and submit a petition for sale.

In case of a demand for the sale of common property or issuing a sale order, the judge issues a sale order after examining and verifying the ownership and naming the other partners as defendants.

It is worth noting that according to the law on the transfer of common property, the request for a sale order can be executed only after determining the non-transfer. unless he is among the heirs of the deprived person; In other words, the common partner of the applicant for the first sale must go to the local registry office and after determining that the property is indivisible, proceed with the sale and issue a decree of non-division.

How to sell common property in divisable properties

Al-Mafrouz literally means separated, whose owners and limits are specified. In legal terms, separate property is a property that is divided into several separate shares and divided between partners, and on the contrary, it is common property.

If the relevant registry office determines that the common property can be divided, it is no longer possible to sell that property in general. As a result, each partner is only allowed to sell his share of the property.

For this, first, it is necessary to perform the necessary registration operations and receive the title deed related to his share of the property. Then he can sell his share of the property without the partner’s permission.

If one of the partners tries to sell their share of the property without the partner’s permission, according to the civil law, his action is considered a prudish transaction.

This action is not a crime, but the partners have the right to accept or reject the transaction; That is, either they receive their share of the sale price of the property and agree, or they do not accept the transaction and take back their share of the property.

How to sell common property in non-alienable properties

If one of the partners goes to the court to divide or buy and sell the joint property and the court determines that the joint property cannot be divided, it will present its verdict to the applicant in the form of a certificate.

This certificate actually states that in the opinion of the court, the property in question is inalienable. Then the applicant can submit a request to the court of law to issue an order to sell the property. The court will also issue a sales order after reviewing the documents and ownership documents, and this order will be transferred to the enforcement department.

At this stage, the common property is put up for auction with the aim of being sold at the highest price. One thing you should know about buying and selling joint property using this method is that both the applicant and each of the partners can buy the joint property by offering the highest price and own it alone.

After the sale of the property through auction, the court fees and legal procedures of the case are deducted from the sale amount. The rest is paid to them according to the partners’ share of the property.

Division of real estate

In terms of its nature, the division is a distinct right, that is, the right of each person is determined. For example, when someone dies, his estate is divided between the heirs and this estate is both movable and immovable. In this example, property division is used instead of separation.

Article 589 of the Civil Code states: “Each of the partners can request the division of the common property at any time, except in cases where division is prohibited by this law or the partners are required not to divide.” Also, in Article 4 of the Law on Transfer and Sale of Common Property, it is stated: “Property, which is determined to be unallocated according to a definitive decision, will be sold at the request of each of the partners by the order of the city court.”

Civil law is divided in order and does not differentiate between movable and immovable property:

  1. must be similar (divisible).
  2. Be valuable and adjust. (Adjustment means being reasonable and dividing according to justice.)

How is the common property attorney?

If the joint real estate partners want a lawyer to sell the property for them, it is strongly recommended that all actions related to the joint property be carried out by a real estate lawyer according to different laws and guidelines. In any case, everyone is an owner, even if he has a smaller share, he is still considered an owner.

Power of attorney must be given to a lawyer by all partners. It does not matter if one of the partners has three dongs, the other has two dongs, and the third jointly has one dong.

Advantages of having a lawyer in common property cases

Due to the unique characteristics of this type of ownership, the way of managing and occupying common property has complex and special rules and regulations that must be followed. It is better to get help from a real estate lawyer.

You can choose a real estate lawyer specializing in real estate claims, including division claims and buying and selling common property. In this case, you only need to visit the lawyer’s office once to complete the process of applying for release and obtaining a certificate of non-release. Leave the purchase and sale of your common property to the lawyers of Dadista Institute so that you do not need to be present in any of the processes.

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What is common property?
Common property is non-divided land that is shared between two or more people and the joint owners participate in that property without their ownership being clear.
How many ways can common property be divided?
Common property is divided into 3 ways: allocation, adjustment and rejection.
How to sell common property in inalienable properties?
If the common property is inalienable, it will be auctioned and then sold.

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