Are you going to buy a co-owned property? Consider these drawbacks
Co-ownership is the division of property rights in the assets of two or more people. It is a truly interesting figure given that what is divided in co-ownership is not the property, but the property that is exercised over it.
When two people are co-owners, in equal parts, of a land of one thousand square meters (m2), it does not mean that 500 m2 belong to one person and that the remaining 500 m2 belong to the other. I insist: what is divided in co-ownership is the property right, not the thing itself. Co-ownership implies that the two people are co-owners of the thousand square meters of land, of each and every one of the molecules of those thousand square meters of land, as explained by the authors of Law.
However, acquiring a property in co-ownership can be an attractive idea in some cases. Mainly because it allows sharing the acquisition costs between two or more people, but also the respective benefits . Think of three brothers, Juan, Hugo and Saúl, who want to jointly acquire the property of a rest house, so that it can be used by the whole family. The siblings will share the acquisition costs and the resulting property among themselves.
The Law allows the co-owners to agree among themselves on the way in which the benefits and charges derived from the common good will be distributed.
Going back to the example of the three brothers who acquired ownership of the rest house: they can agree that Juan can use it in its entirety for one week, and Hugo the following week and Saúl the following week. Or, they can agree that the three of them can use the house at all times, agreeing on which room or rooms each one will use. The division of charges can also be subject to regulation by the co-owners: a brother can take care of the maintenance one month, and the following month another brother and so on.
If co-ownership can be so profitable, then why should we be wary of it? Those of us who studied Law were taught from the first semesters a fundamental principle on this subject: the Law "hates" co-ownership. Why does he hate her? Because for hundreds, if not thousands of years, co-ownership has been the source of countless interpersonal conflicts.
The idea of ​​three brothers sharing ownership of a vacation home is wonderful, until the first fight comes about who gets to use it on summer vacations or on holidays. Or about whether everyone should participate in fixing a water heater, which broke down during the time when only one of the brothers occupied the house. Indeed, the Law regulates and tolerates co-ownership, but it is not a figure whose use it encourages.
The legislator sought to make co-ownership, in each specific case, a temporary and non-permanent figure. For this he introduced two figures aimed at ending it: the action of division of common thing and the right of both.
The action of division of common property is based on the principle that “no one is obliged to remain in joint ownership”. If a co-owner decides that it is not their will to participate in the co-ownership any more, they have three options: (i) if the property admits a comfortable division, that is, if it can be divided without detriment to its substance, they can demand that it be divided and that to each co-owner, exclusively, the portion that corresponds to him, (ii) if the property does not admit comfortable division, you can agree with the other co-owners that one acquires the portion of the others or, (iii) if the latter is not possible , it can be requested – even judicially – that the entire property be sold to a third party and the price be distributed among the former co-owners.
The purpose of the right of both is that the property is consolidated, that is, that it is concentrated in the assets of a single person, as each co-owner decides to transfer their participation in it to a third party. It obliges each co-owner who is going to transmit his aliquot part , that is, the portion of his property, to a third party, to prefer the other co-owners who wish to acquire it, provided that they can give "as much" as the third party.
If the co-owners exercise the right of both at every possible opportunity, sooner or later one of them will end up being the sole owner of the property.
Being a co-owner of an asset implies being subject at all times to (i) that another of the co-owners exercises the action of division of the common thing or (ii) to have to observe rules for the exercise of the right of both, if it is desired to transmit to a third party the aliquot part of which he is the owner. Read More...
