What should be done with the family home in the event of a marital or partnership crisis or with an asset that is shared between several heirs

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In a society such as here in Spain, in which dissolution processes (separations, divorces and annulments) are increasing by almost 1% annually – 101,294 in 2006 and 102,341 in 2007, according to data from the National Statistics Institute (INE) it is useful to consider what should be done with the family home owned by the couple, in the event that one wants to buy one part from the other and the property is indivisible (for example, a flat or villa).

In this situation, there are two possibilities:

(a) That both agree to sell their share to the other owner or to the other party.

b) Neither of them wants to give in and there is no sale agreement between them or to sell to a third party.

The solution for both these cases can be found within the Division of Common Property, which is the right that each co-owner who is a joint owner of a property has individually to request the division of the ownership (article 400 of the Civil Code). The aim of this action is to achieve firstly the dissolution of the home and secondly the sale of the property either by private auction (between the co-owner couple) or public auction (with outside bidders, i.e. with the intervention of third parties in the auction who can bid to acquire the property).

It is very common in proceedings arising from separation/divorce or inheritance. Our experience is that agreements are usually reached before the auction, since in the event that one of the owners wants to buy and the other refuses, the judicial procedure “forces” him to reach an understanding with the other party, since he knows that in the auction he will receive less money for his share in the property.

In addition, the division of common property has a much more favourable tax rate than in the sale and purchase, so it is very beneficial to take this action in this case.

At Bufete Salmerón we handle many matters relating to the extinction of the family home and the division of common property, and we have a team of highly qualified lawyers, so if you find yourself in this situation do not hesitate to contact us.


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