Removal of commonality
Before addressing the subject of termination of co-ownership (partition of jointly owned property), clarifying its nature and the documents required to carry it out, it is necessary to understand what termination of co-ownership means:
Definition of Termination of Co-ownership:
It is a judicial procedure carried out through the courts due to disagreement among co-owners regarding the division of jointly owned property.
Cases in which it is mandatory:
- If amicable division of the jointly owned property is not possible.
- If one of the co-owners is legally incapacitated or absent, and the court refuses to authorize amicable partition or refuses to approve the partition agreement.
Parties to the Lawsuit:
1) Plaintiff (the party requesting partition):
Any co-owner may file the lawsuit, regardless of how small their share is.
However, the claim is not accepted from someone who owns the property based on an informal contract, formal contract, or court judgment unless the ownership has been registered in their name.
2) Defendant(s):
The lawsuit must be filed against all co-owners and holders of real rights as recorded in the land registry.
The case is not divisible; therefore, all co-owners and right holders must be summoned.
- 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 trustee represents a person who is fully or partially incapacitated.
- If no legal representative exists, the judge must request the Sharia Court to appoint someone to represent them.
3) Intervention of Creditors:
- Creditors have a serious legal interest in intervening in partition proceedings. The purpose of their intervention is to prevent harm to their debtor’s share and to avoid collusion between co-owners that may prejudice their rights.
- Intervention may be voluntary: if a creditor objects to the partition in court or during enforcement proceedings, the partition shall not be enforceable against them.
- However, if the partition is completed, a creditor who did not intervene may not challenge it, except in certain cases.
- Intervention may also be mandatory. It is granted to mortgage creditors and holders of privileged rights whose rights have been properly registered in the land registry before the lawsuit is filed.
- Laws governing public banks (Commercial Bank, Savings Bank, Real Estate Bank, Agricultural Bank, Industrial Bank, and Popular Credit Bank) stipulate that mortgaged real estate may not be partitioned or divided without the bank’s consent, provided its rights are secured. The bank must be a party, along with debtors and guarantors, in partition and co-ownership termination cases related to properties securing its rights. Any contrary action is considered void as a matter of public order.
Documents Required for Filing the Claim:
- The statement of claim including the requirements of Article 94 of the Civil Procedure Code.
- Property registry extract, including its area if not stated in the record.
- Technical cadastral map showing scale.
- A statement from the local administrative authority showing that the property is:
a) Not subject to Law No. 60 of 1979, as amended by Law No. 26 of 2000.
(See Ministry of Justice circulars No. 49 of 1998 and No. 33 of 1978.)
b) The building regulations applicable in the area of the property. - Inheritance certificate if one of the co-owners is deceased.
- Registration of the lawsuit, placing a legal annotation on the property record, and notifying the parties to attend.