09/03/2011
We are sometimes faced with situations where we have a shared heritage with others for various reasons, for example, because of buying in common and undivided, because they inherited a property in common with others, because they were married under the matrimonial property regime and purchased goods during the marriage.
Various procedural laws and division manners are applicable, depending on the different Spanish Autonomous Communities they are.
In Castile and the rest of Spain where there are no special laws or where they should not apply, the rules for the division of common property are found in Articles 400 and following of the Spanish Civil Code.
In Spain, basically, any owner can ask for the dissolution of the common property and this right does not prescribe.
If the goods are indivisible and the co-owners do not agree to award them to one of them, compensating the others, they will sell the goods and distribute the price.
In Catalonia, when the object of the community is indivisible, significantly detracts from the split, or is a collection that integrates the artistic, literary or documentary heritage, it is awarded to the co-owner who has an interest in it. If there is more than one interested in it, to the one with the largest share. In case of equal interest and participation, it is decided by drawing lots. The successful one must pay the others the appraised value of his participation.
When the co-owner parties do not agree to divide or share those common goods, they have no other choice than to go to Court, which will be the one who performs the necessary operations to divide and liquidate those assets. However, the procedures of division and liquidation of assets are common practice throughout the Spain.
We can distinguish essentially three different procedures:
a) Special procedure for judicial division of inherited estates; that is, those whose ownership is not defined or adjudicated by specific portions for certain specific assets; such as those from estates where the heirs and legatees have not accepted the heritage and it has not been materialized in specific shares, what has become known as community of joint owners, what would be some kind of the also called Germanic communities.
b) A common or an ordinary procedure (as it is not a special or specific procedure for this case), for the division of assets that already have awarded a particular ratio between the co-owners, what has been called communities of part – owners (Roman communities) or per quota communities.
c) A special procedure for the dissolution and liquidation of matrimonial property regimes, in consequence of nullity, separation or divorce.