When an asset belongs to several subjects, it is said that it is in communion: it is therefore a situation of co-ownership of multiple subjects. Co-ownership means equal value for all, unless there are different divisions.
Sometimes staying in a communion can generate inconvenience or be managed within conflicts: this is why you can resort to division, to the dissolution of property. Let’s see how.
It is always possible, without a prescription, to ask for the division of the asset. The good can always be divided, unless it is a good that, if divided, becomes useless for the use for which it is intended.
The division action
The division can be requested by any owner, regardless of his share of ownership. At this point two cases emerge:
- All co-owners accept the division and find an agreement : the consensual division proceeds . The contract for dividing a property must be written, otherwise it is void; it must also be transcribed. For these formalities it will be necessary to rely on a notary, who will also deal with the formation of the parts (called lots).
- There is no agreement between the co-owners : it is necessary to contact the judge ( judicial division . The case becomes more complicated: there may in fact be no agreement for various reasons, for example for the division of lots or precisely because not everyone agrees with the division of the good.
In this case, if it is a single property and if there are no other solutions of agreement between the parties, the judge will be able to order the auction sale and the proceeds delivered to the former co-owners, according to their own co-ownership share. If it is a simply divisible asset (ex: a two-family villa) and the co-owners are two, you can instead opt for the division of the asset into two.
Attention: if the co-owners have entered into an indivision agreement , co-ownership cannot be divided. The indivision agreement can last a maximum of ten years.
Suppose there is a mortgage on the house. At this point, if the parties manage to agree on the division, each will contribute to the mortgage according to its share.
If the parties are unable to reach an agreement, a mediator or, ultimately, a judge can be contacted. Therefore, if the money obtained through the auction is sufficient to pay off the mortgage, the remainder is divided between the parts according to its share.
If, on the other hand, the proceeds from the sale are not sufficient to pay off the mortgage, the parties will contribute to the payment according to their shares.