Shared Apartment or House: When Property Division Is Possible and When Only Share Allocation Is Allowed
Joint ownership of an apartment, house, or other real estate object often becomes a source of conflicts between co-owners. Most disputes arise when one of the owners wants to receive their share separately or the parties decide to finally divide the property among themselves. The law provides two different mechanisms for such cases — property division and allocation of a share in kind. Although these concepts are often confused, their legal consequences differ significantly.
What is joint partial ownership
Joint partial ownership is the ownership of two or more persons, in which each co-owner's share in the ownership right is defined.
According to part one of Article 356 of the Civil Code of Ukraine, each participant in joint partial ownership owns not a specific part of the property in kind, but a share in the ownership right to the entire property as a whole.
According to part three of Article 358 of the Civil Code of Ukraine, each co-owner has the right to demand possession and use of that part of the joint property in kind that corresponds to their share.
When a co-owner can demand allocation of a share
Parts one and two of Article 364 of the Civil Code of Ukraine provide the co-owner's right to allocation in kind of a share from property held in joint partial ownership.
In such a case, the person may receive property in kind corresponding to their share. If this is impossible, the co-owner has the right to appropriate compensation.
How property division differs from share allocation
Property division
During property division, the property held in joint partial ownership is distributed among all co-owners.
After the division is completed, the right of joint partial ownership terminates for all participants. Each of them becomes the sole owner of the property they received as a result of the division.
Co-owners may independently agree on the procedure for property division. Unless otherwise provided by law or agreement between the parties, shares are considered equal.
Share allocation
Unlike division, during allocation, the legal relations of joint partial ownership continue to exist.
The right of joint ownership terminates only for the co-owner who allocates their share in kind. The other participants remain co-owners of the property.
The co-owner who performs the allocation receives separate property corresponding to their share or compensation if allocation in kind is impossible.
At the same time, if the property belongs only to two co-owners under joint partial ownership, the process effectively constitutes property division, not allocation.
Consequences of real estate division
In the case of property division, the right of joint partial ownership over it completely terminates.
After the procedure is completed, each former co-owner acquires ownership rights to the allocated part of the property as a separate object.
What to do if co-owners cannot agree
In practice, co-owners do not always reach an agreement regarding allocation of a share in kind or the procedure for using the real estate.
In such a situation, the co-owner wishing to allocate their share has the right to apply to the court with a claim for allocation in kind of the share of real estate held in joint ownership.
Which court to apply to
Claims for allocation in kind of a share of real estate are considered in civil proceedings.
Such claims are submitted to district, district in cities, city, or city district courts at the location of the real estate.
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