Termination of the co-ownership and conversion of the latter into an individual property.
The partition is applicable only in case of common ownership, where each co-owner has a specific fixed share.
Such co-ownership occurs in case of inheritance, where each successor has a share (‘ideal part’) of the ownership right to the property, included in the heritage.
The common ownership may also occur when two or more individuals acquire jointly certain property, in which case each co-owner gets an ‘ideal part’ of the property.
Example: A and B jointly buy a house, in which case they`re both mentioned as buyers in the title deed and each of them has ½ ideal part of the property.
Cases, when co-ownership cannot be terminated:
The partition is not applicable in case of matrimonial property since before its termination this property represents a joint ownership, which is indivisible and the co-owners don`t have separate shares. After the termination of this ownership, it becomes standard ownership in which case the partition is applicable.
It is important to note that according to the Family Code, the matrimonial regime is always applicable when the married couple didn`t choose different regime of their relations (separate property or agreement).
The other exception is the common parts in the condominium, which are indivisible by rule. Each owner of an individual unit within the condominium possesses a share in the common parts, which is proportional to the ratio between the values of individual premises owned by them, calculated at the time of the establishment of the condominium.
It should be considered whether the premises concerned is a common part by nature or by its function. If it is a common part by its function, the general meeting of the condominium can decide to exclude the premises from the common parts and to separate it into an individual unit, which becomes ownership in common between the owners of individual units within the condominium.
Finally, the partition is inapplicable in case of ownership originated from a civil partnership under the Obligations and Contracts Act (‘OCA’). The civil partnership is not a separate legal entity, insofar as it represents a union of individuals or legal entities aiming to achieve a specific goal.
In this case, the partition is not applicable as far as each partner may seek his share only in case of termination of the partnership or resignation by the partner.
The co-owners can agree on the conditions of the partition in which case they may terminate the ownership in common without court intervention. In this situation, the parties prepare an agreement, which should be signed by all the co-owners in order for the partition to be valid.
In the partition procedure, the statutory requirements for the minimum area of each different type of property shall be met.
In the partition procedure, all the co-owners shall participate. In case of non-compliance with this requirement, the agreement will be invalid and won`t produce legal effects.
In the event of a partition of movable property with the amount above BGN 50 or immovable property, the agreement shall be written with notary certified signatures of all co-owners. When incapacitated or absent persons participate in the partition, prior authorization of the regional court must be obtained.
If the co-owners did not agree to a specific division of the common ownership, they can seek such division by the court. In this case, any of the co-owners have the right to file an application for partition with the competent regional court.
Like the agreement for voluntary partition, in the court partition, all co-owners should participate.
Otherwise, the partition will be invalid and won`t produce its legal effect to terminate the co-ownership and to convert it into an individual property.
The court partition proceedings consist of two phases:
- Phase granting the partition – in this first phase the court pronounces on the questions between which persons and in respect of which property the partition is to be made, as well as what share appertains to each co-owner. The court shall give its decision in the form of a judgment, which can be appealed.
Each co-owner may object to the right of any of the other co-owners to participate in the partition, to the amount of the share of each co-owner, as well as to the incorporation of certain property into the procedure.
In this phase the court may consider other additional claims which are relevant to the partition, namely:
- contestation of origin of any of the other co-owners;
- contestation of adoption;
- contestation of testaments;
- claim for reduction of testamentary dispositions and donations.
One of the features of this procedure is the capacity of the parties, which are both claimants and defendants. Therefore, each co-owner may request the incorporation of other property, which action should be made during the first open court hearing.
The judgment granting the partition does not divide the co-ownership. Therefore, if not all the co-owners use the property in conformity with their rights, upon a request made by one of them, the court shall rule on the way of the use of the property until the partition is finally made. In this case, the judge shall either make a distribution, if the estates are more than one and there is an estate for each co-owner or shall determine a compensation which the co-owner who uses the property should pay the other co-owners, who do not use it.
Example: If the divisible property is comprised of two real estates and the co-owners are two, the court may rule each co-owner to use one of the estates.
If the common ownership is comprised of a single real estate, which can`t be used by both co-owners at the same time, the court may rule that the estate will be used only by one of them against the payment of a certain amount in favor of the other co-owner.
- Second phase
The second phase is the actual phase of the partition. The court should choose the most appropriate way to carry out the partition, considering the number of the co-owners, the number of the admitted estates and the right of each co-owner. It is also of essence whether the real estate/s, which is/are the subject matter of the partition, is/are divisible.
When determining whether a building, dwelling or other property is divisible, it is of essence whether the shares concerned can be separate into individual units without significant reconstructions and without inconveniences bigger than usual, in compliance with the construction rules. According to the well-established court practice the question whether a reconstruction is significant is one of facts and should be explored on case-by-case basis.
In order for this assessment to be made, the condition and the value of the dwelling prior the reconstruction should be compared to the value of the necessary construction and installation works for the separation of individual units.
When carrying out the partition, the court should adhere to the statutory requirements for the minimum area of the different types of property.
Partition by drafting a memorandum of division and drawing of lots
The main principle when carrying out the partition is each of the co-owners to receive in-kind share. This is possible when the number of real estates, allowed to partition, is equal or larger than the number of co-owners. It is not necessary for the real estates to be neither of the same type nor of the same size.
What`s important is that the real estates can be used separately.
The court prepares a draft of the memorandum of division based on the conclusion of an expert witness. The court shall summon the parties in order to present them with the draft and to hear their objections against the distribution or the expert’s assessment. If the memorandum of division is drafted during an open court hearing, in which one of the co-owners is not represented (in person or through a representative), the court should postpone the court hearing in order for all of the co-owners to formalize themselves with the draft.
The next step is the drafting of the final memorandum of division followed by the drawing of lots.
How the drawing of lots is conducted?
Each share, defined in the final memorandum of division, should be wrote down (individualized) in separate opaque sheet and each sheet should be folded uniformly.
The alternative is to place each sheet in opaque envelope.
Each co-owner shall draw one sheet/envelope and if one of the co-owners is not represented, the court shall draw instead of him. The main purpose is the distribution to be made not by the will/choice of the co-owners or the discretion of the court.
In case that the formation of shares and the drawing of lots is impossible or very inconvenient, the court may make the partition by separating the property among the co-owners without drawing of lots.
- The drawing of lots is impossible when the real estates, allowed to partition, are substantially different in size, volume or value and the shares of the co-owners are different too.
- There is a major inconvenience when each co-owner has made significant improvements to certain real estate, allowed to partition.
Partition by offering for public sale of immovable property
This method is applicable when the property is indivisible and cannot be allocated to any of the shares. In this case it should be offered for public sale and the co-owners may bid in the public sale.
Each of the co-owners can buy out the property with priority if declares that he or she wishes to purchase the immovable property at the highest price offered.
Award of indivisible dwelling
The statute envisages two hypotheses in which an indivisible dwelling can be assigned to one of the co-owners, in which case the property becomes her or his individual property.
- Award of indivisible dwelling in favor of the surviving or former spouse:
The prerequisites for the award are the following:
- The property is dwelling;
- The property was matrimonial community property terminated by the death of one of the spouses or by divorce;
- the spouse concerned has the custody in respect of the children from the marriage;
- the spouse does not have a dwelling unit of his or her own.
- Award of indivisible dwelling in favor of one of the successors
The prerequisites for the award are the following:
- The property is dwelling;
- by the time of the opening of the succession the co-owner has resided in the dwelling;
- the co-owner does not have a dwelling unit of his or her own.
In both cases the co-owner (successor/spouse) should make his/her request for the award of the dwelling within the second phase of the partition. If the above prerequisites are met, the court orders the dwelling in the share of the co-owner who requested the assignment, and the shares of the other co-owners should be equated with other real estates or with money.