Joint ownership of a property: what happens when one of the co-owners wants to withdraw?

A simple guide to joint ownership of property and the ways to dissolve it, from amicable agreement to court proceedings

It happens more often than you might think: a property is owned by several people (joint ownership), some of whom no longer want to continue owning it jointly, while the others delay a decision or simply do not respond. This is precisely what happened in a case our firm recently handled, in which some co-owners, after several unsuccessful attempts at dialogue, decided to formally request the dissolution of the co-ownership.

Situations such as this raise recurring questions: can you be forced to remain a co-owner? And how do you “divide” a house?

What is joint ownership of a property?

According to Article 1100 of the Italian Civil Code, joint ownership exists when ownership (or another “real right”, diritto reale) of an asset is held by more than one person. It arises, for example, when several people purchase a property together, or when they inherit it.

The key point is that each co-owner does not own a “room” or a “floor”, but rather a share of the entire property: 25 per cent, 50 per cent and so on. Unless otherwise specified, the shares are presumed to be equal (Article 1101 of the Italian Civil Code).

Rights and obligations of co-owners

Each co-owner:

• may use the common property, provided they do not alter its intended use and do not prevent the other co-owners from making similar use of it (Article 1102 of the Italian Civil Code);
• may sell or donate their share without the consent of the others (Article 1103 of the Italian Civil Code);
• must contribute to the expenses necessary for the maintenance and enjoyment of the property, in proportion to their share (Article 1104 of the Italian Civil Code).

Co-owners decide day-to-day management by a majority based on the value of their shares (Article 1105 of the Italian Civil Code); more significant acts require higher majorities, and to sell the entire property, all co-owners must consent (Article 1108 of the Italian Civil Code).

Can you be forced to remain in joint ownership?

No. Article 1111 of the Italian Civil Code establishes that each co-owner may at any time request the dissolution of the co-ownership. Exceptions are limited:

• an agreement to remain in co-ownership for a period of up to ten years;
• the court’s power to grant a short extension if immediate dissolution would prejudice the interests of the other co-owners.

A co-owner’s lack of interest or opposition, therefore, may slow the process but cannot prevent it.

How to dissolve joint ownership: division by mutual agreement

The quickest and most cost-effective route is by mutual agreement. The co-owners may, before a notary, draw up a deed of division providing for:

• division in kind, if the property is readily divisible;
• the allocation of the entire property to one or more co-owners, who pay the others a cash adjustment;
• sale to a third party, with the proceeds divided in proportion to the shares.

Judicial division: mediation and partition proceedings

If the parties do not reach an agreement, mediation is mandatory (Italian Legislative Decree No. 28/2010) before taking the matter to court; this is a prerequisite for commencing or continuing legal proceedings.

If mediation fails, partition proceedings are initiated (Articles 784 et seq. of the Italian Code of Civil Procedure), in which all co-owners must participate. The judge, usually with the assistance of a technical expert, values the property and assesses its divisibility. Under the rules on the division of an estate set out in Article 1116 of the Italian Civil Code:

• if the property is not readily divisible, it is allocated, with compensation, to the co-owner who requests it (preferably the one with the largest share);
• failing that, the property is sold at auction and the proceeds are divided amongst the co-owners (Article 720 of the Italian Civil Code).

Our advice

Judicial partition always guarantees a resolution but is time-consuming and costly, often resulting in an auction that reduces the realisable value. For this reason, it is advisable to address the matter in good time, with clear formal communication and a concrete proposal, favouring, where possible, a negotiated solution.