Blogs

Common sense and how to remove it

Definition of judicial termination of joint ownership (partition by court):
It is a procedure carried out through the judiciary due to disagreements among co-owners regarding the division of jointly owned property.

It must be conducted in the following cases:

1. When it is impossible to divide the jointly owned property by mutual agreement.
2. When among the co-owners there is a person who is legally incapacitated or absent, and the court refuses to authorize an amicable division or refuses to ratify the partition agreement.

Parties to the lawsuit:

1. Plaintiff (person requesting partition):
   Any co-owner may file the lawsuit, regardless of how small their share is.
   The claim is not accepted from someone who owns the property based on an informal contract, official document, or court judgment unless the ownership has been registered in their name.
2. Defendants:
   The lawsuit must be filed against all co-owners and holders of real rights as recorded in the land registry.
   The case is indivisible, meaning all co-owners and rights holders must be summoned to attend.

• If one of the co-owners is absent or lacks legal capacity, a judicial representative is appointed to represent the absent person.
• A guardian or custodian represents a person who lacks or has limited legal capacity.
• If no representative exists, the judge must request the Sharia court to appoint someone to act on their behalf.

1. Intervention of creditors:

• Creditors have a serious interest in intervening in judicial partition procedures. This intervention aims to prevent harm to their debtor (one of the co-owners) and to avoid collusion affecting their rights.
• Intervention may be voluntary: if a creditor objects to the partition in court or during enforcement, the partition cannot be enforced against them.
• If the partition is completed, a creditor who did not intervene may not challenge it except in certain cases (not specified in the text).
• Intervention may also be mandatory and is granted to mortgage creditors and holders of privileged rights whose rights were properly registered in the land registry before the lawsuit was filed.

Bank-related rule:

According to laws governing public banks (Commercial, Savings, Real Estate, Agricultural, Industrial, and People’s Credit banks), it is not permitted to partition or separate mortgaged properties without the bank’s approval, provided that its rights are secured. The bank must be a party to lawsuits concerning judicial partition and termination of joint ownership involving properties that secure its rights. Any action contrary to this is considered void and contrary to public policy.

Documents required for the claim:

1. Statement of claim including the requirements of Article 94 of the Civil Procedure Law.
2. Property registry extract and area statement if not included in the registry.
3. Technical survey map showing scale.
4. Statement from the administrative authority confirming:
   a) The property is not subject to Law No. 60 of 1979 (as amended by Law No. 26 of 2000).
   b) Building regulations applicable to the area.
5. Inheritance certificate if one of the co-owners is deceased.
6. Registration of the case and placing its notice on the property record, and notifying all parties to attend.