Co-ownership as a specific type of community property
Co-ownership as a specific type of community of property: Legal regime, powers of use, co-ownership administration system, support of common expenses and power of dissolution at the request of any community member.
Co-ownership between several persons with respect to the same property (property real right) constitutes a specific type of community property, such that all joint properties are community property but not all community property must be constituted around the common property of a property, there are other types of community property that fall on other types of rights, real or credit (lease collection, easement, etc.)
Co-ownership regulation
The Civil Code does not establish a specific regulation of co-ownership but rather establishes the community of property regime that is applicable to co-ownership in the absence of a specific agreement between the community members (art. 392 Civil Code) being the only limit to the availability by the parties of the rules that are to govern the community of goods that established in the arts. 398.3, 400, 403 and 405 of the CC, with the following detail:
- The power of any community member to resort to judicial assistance (even to appoint an administrator) cannot be prohibited in cases of absence of agreement between the community members or adoption of agreements that are seriously detrimental to those interested in the common thing (art. 398.3 CC).
- Any community member will be empowered to request the division of the common property, although the community members may reciprocally bind themselves by agreement to keep the property undivided for a maximum period of ten (10) years, extendable once again upon completion (art. 400 CC).
- The division of the common thing may be attended by the creditors or assignees of the participants, being able to oppose it and challenge the consummated division in case of fraud (art. 403 CC) and may not harm third parties who have established rights real or personal against the community (art. 405 CC).
Faculties of use of jointly owned assets
Regarding the powers of use of jointly-owned assets, art. 394 of the Civil Code provides that:
“Each shareholder may use common property, provided they dispose of them according to their destination and in such a way that they do not harm the interest of the community, nor prevent the partners from using them according to their right”.
Accordingly, our Code recognizes the right of each member of the community to use and use the commons in their entirety.
It may interest you:”What is a Community Property”
In accordance with the interpretation made by the Supreme Court of the content of art. 394 of the Civil Code (for all, Judgments of March 23, 1991 and May 7, 2007), unless expressly agreed between the co-owners, all of them may make joint use of the common property regardless of the ownership fee held by each one of them, with the sole limit of disposing of them “acaccording to their destination and in a way that does not harm the interest of the community, nor prevents the co-participants from using them according to their right”.
However, such regime is dispositive and only applies in the absence of express agreement between the parties, so it can be modified by agreement of the co-owners who can agree, for example, establish a system of use by turns or by separate spaces or decide to lease the farm to a third party (for the adoption of such an agreement the system of majority of quotas provided for in article 398 CC would be applicable).
Support and distribution of conservation expenses
In relation to the system of support of the community of assets and distribution of conservation expenses it must be indicated that in accordance with the provisions of art. . 393 of the Civil Code, the conservation expenses of the property titled in co-ownership are considered community charges and, therefore, they must be attended by the co-participants in proportion to their respective participation quotas (in the event that it cannot be determine the percentage of participation of each community member, these will be presumed equal to each other).
Likewise, art. 395 of the Civil Code provides that in the event that one of the co-partners fully and exclusively pays any cost of conservation of the property, they will have the right to claim against the rest of the co-participants in proportion to the part that to each of them title to the property and in order to be reimbursed the amount of such expenses in accordance with such rule of proportionality, the community members may not oppose to face said payment unless they waive the part that may correspond to them of the property (art. 395 Civil Code).
Administration and performance of disposal acts
Regarding the community property administration system and carrying out acts of disposition, it should be noted that, unless otherwise agreed, the administration of the goods in joint ownership will be carried out by all the community members by agreement for the adoption of which the system of majority participation provided for in art. 398 of the Civil Code.
However, the community members by agreement (to which the same majority described above will be required, that is, agreement of the participants that represent the majority of community shares) They can agree on any alternative administration system they deem appropriate, including delegation in favor of a single-member body.
All those that refer to “the enjoyment of the thing, without altering its substance”, that is, that do not constitute acts of disposition (Judgment of the Supreme Court of February 22, 2013). In this way, within the category of administrative acts could be included -without being exhaustive- any of the following actions:
- entering into a short-term lease of real estate (according to the understanding of the Supreme Court, the formalization of long-term lease contracts would fall within the category of disposition acts),
- termination of lease agreements,
- adoption of the agreement to evict a community member who, to the exclusion of the rest, makes exclusive use of the property, or
- modification of the use to which the property has been assigned, among others.
In contrast to the previously described administration regime, in order to carry out acts of disposition (physical or legal alteration of the asset) unanimity or agreement of all parties will be required. partners, express or tacit.
In any case, the truth is that jurisprudence is unanimous in considering according to law the possibility that any community member can act for the benefit of the community if there is no express opposition court of the remaining community members.
