CONDOMINIUM DISSOLUTION PROCESS OF PROPERTY SITUATED IN SPAIN
Dear clients and readers,
The subject of today’s post is of great interest to people (Spanish or foreigners), who “share” property in Spain. It is irrelevant whether the joint owners are married or not, as you can buy a property in Spain with a friend. This situation is also frequently encountered in inheritance cases (i.e. a widow sharing the property with her late husband’s daughter, etc). If this happens, any joint owner has the legal right to reach the decision to terminate the condominium (joint ownership) that, together with the other (or more than one) owners is maintained over the property (or properties situated in Spain).
When this happens, – if it were in one of the parties’ interest to mutually acquire or sell his or her ownership share. It would be feasible to establish a reasonable market value by mutual agreement or by appointing an impartial valuation expert company for this purpose. (i.e. Tinsa or similar).
Likewise, it is also strongly advisable that both parties are open to the possibility of selling the property to third parties, either through a real estate agency. This would avoid having to initiate a non-friendly contradictory judicial procedure. Whose result would end up being exactly the same, i.e. the public auction of the property.
In fact, – in the event that one of the owners does not wish to, or is unable to, acquire the other owner’s share. We usually recommend the parties to put the property up for sale with the intervention of real estate professionals. And, if the transfer is successful, divide the price obtained according to their respective shares of participation. Consequently, it is highly advisable to have the property appraised and its current market value determined, provided that both parties agree on splitting the costs.
The contentious court proceedings
In the event of complete refusal by one of the joint owners to negotiate any proposed routes without a reasonable, objective and impartial alternative. Therefore, the other owner will be able to take the necessary action for the division of the common property. Requesting that as it is a property which is not divisible into two parts, it be sold at auction by the Court and that the money be divided among the heirs in proportion to their shares.
The problem posed by the judicial procedure is not only the duration of the judicial procedure itself. But also the costs incurred in the event of an unjustified refusal of one of the parties to seek a negotiated solution. Specifically, Article 395 of the Civil Procedure Act stipulates with regard to costs in the event of acquiescence that:
1.- If the defendant accepts the claim before answering it, costs will not be imposed unless the court, with due reasoning, considers the defendant to be in bad faith.
2. – It will be understood that, in any case, bad faith exists if, before the claim was filed. A reliable and justified request for payment had been made to the defendant, or if mediation proceedings had been initiated or a request for conciliation had been addressed to the defendant.
Along the same lines, the Provincial Court of Las Palmas (3rd Section), in its ruling of 10-04-2014, states:
” .. the action brought being an action for the division of common property, which – let us not forget – in turn stems from legal proceedings for the division of an inheritance dating back to 2006, with constant actions by the plaintiffs aimed at resolving the problem without any evidence of any such action on the part of the defendants. It is difficult to understand how the appellants are seeking a ‘reliable payment request’ or a ‘conciliation procedure’ instead of what was correctly attempted by means of buro faxes addressed to each and every one of the defendants in which the prior request was recorded for the purposes of reaching an agreement to put an end to the community and, in short, to achieve an amicable solution, in short.
To achieve an amicable solution to the matter, with an express warning to seek judicial assistance, all of whose requests the appellants ignored and then accepted before answering the claim which the plaintiffs were forced to file, claiming, without further ado, the non-imposition of costs due to their acceptance …”
Therefore, our sound recommendation to all our clients is to avoid by all means a contentious protracted judicial court dispute, the result of which will ultimately be the same, but with a substantial increase in costs, not to mention the fact that the selling value of the property in the public auction would be dramatically reduced. In fact, this would be an ideal solution for both parties, as it would permit selling the property to third parties, allowing both parties to obtain a higher profit and avoiding facing a non- friendly contradictory judicial procedure, whose result would end up being exactly the same outcome, (i.e. the public auction of the property), but for a much lower value, as indicated before.
To sum up, from our professional experience, it is always much better to agree by establishing a reasonable market value by mutual agreement or by appointing an impartial expert for this purpose. (ie. through a real estate agency). I must stress the point that the problem posed by the judicial procedure is not only the gargantuan duration of the judicial procedure itself. But also the costs incurred in the event of the refusal of any of the parties to seek a negotiated solution. In fact, we are currently dealing with other similar cases at the moment and in 99% of the cases, the courts always strongly recommend both parties settle amicably out of court. In order to avoid protracted litigation and an escalation of the expenses for both parties.
HOW TO CONTACT US FOR FURTHER SPECIFIC ADVICE?
We hope you find this information useful. Remember that this is not intended to be specific legal advice, just a general overview. As independent lawyers, we can help you both by assisting you with all administrative issues as well as carrying out a comprehensive background legal analysis on your consultation or problem, if required.
Should you be interested in receiving more specific information or simply get an independent 2º opinion, (either about this particular subject or any other), you can contact our firm several ways:
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Finally, thank you very much for your attention, and in case you might have any questions or doubts at all. Again please do not hesitate to contact us. We would like to stress the point that you will be in good hands. And you can be reassured that we will look after your interests in the most committed and professional way.
We look forward to helping you and the benefit of our “know-how”.
Kindest regards.
Mr Oscar Ricor
“NON-PRACTISING ENGLISH SOLICITOR IN ENGLAND AND WALES”, under the “Solicitors Regulation Authority” (SRA) SRA number 519196 and practicing Spanish Solicitor. BZN LEX INTERNATIONAL LAWYER
