Engel & Völkers
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What is a joint tenancy?

One of the principles of the constitution is the right to property, which has evolved over time both in form and meaning. The Spanish Civil Code determines that ownership is the right to dispose of and enjoy a thing without limitations, except those established by law. Therefore, owners have full freedom and authority over their property. There are cases in which the same property is shared by more than one person; this is when certain difficulties may arise when it comes to managing estates. This is also where the concept of joint ownership comes into play.

What is a joint tenancy? A joint tenancy is a status contemplated by law, and refers to those properties that have more than one owner in common, so that none of the parties has the total right over the property. This concept is also known as condominium, co-ownership or community of property. And anything of value can be subject to a co-ownership. However, the most common joint ownerships or co-ownerships are usually real estate, and often arise in situations of divorce, separation or inheritance. Such cases are the ones that give rise to the most legal disputes.

Selling a joint tenancy

Now that we know what a joint tenancy is, we will now deal with the aspects related to the sale of a property belonging to several co-owners.

Selling a joint ownership is a simple operation when the co-owners agree to sell the whole of the property to a third party, as this is how the dissolution of the joint ownership becomes effective.

In this case, each co-owner obtains an economic amount according to the percentage of the property he/she owns. So selling to a third party, before a notary and with a public deed, is a type of transaction that can be carried out without any problems.

If there is a mortgage if there is a mortgage in force on the property in joint ownership, it is possible to settle the outstanding debt by the joint owners, or by the buyer, by agreeing a corresponding reduction in the sale price. In such a case, it is advisable to have the property transaction carried out by a real estate consultant. This requires the agreement of both parties and their signatures on the sales document.

But what happens if what happens if one co-owner wants to sell and the others do not? This situation is usually common in inheritances, where one of the owners refuses to sell the common property, or when one of the owners wants to get rid of his percentage of the property and the rest do not.

In these cases in which the owners of the property do not reach an agreement, the alternative is the legal route. It is the judge who will decide how the property in question is to be distributed.

Joint inheritance

As we have pointed out above, in the proindivisos granted in an inheritance (homes in many cases) it is very common for each of the heirs to receive a share. It is possible that some may receive a larger percentage of the property, although none of them will be able to dispose of it in its entirety, but will have to reach an agreement with the rest of the co-owners.

It should be remembered that the proindiviso in inheritance does not become effective in legal terms until it is recorded in the Land Registry. And it will only be recorded when the inheritance has been awarded to the heirs with their corresponding percentages, and they have accepted them. From this moment onwards is when some co-owners may prefer to keep it and others may prefer to sell it, among other situations.

Of course, agreement between the parties is always the ideal procedure. However, it is important to note that there is one nuance not mentioned in the previous point: one of the co-owners of a joint ownership may sell his or her part of the property on his or her own account to one of the companies that buy it. In fact, this is a legal operation, although it should be remembered that the amount to be received will always be less than its real value.

Prior to this supposed situation, the heirs must have settled the inheritance tax in addition to having taken care of the tax charges involved in the extinction of the co-ownership.

Dissolution of a joint ownership

When executing the dissolution of a joint ownership, we must take into account whether the property is divisible or indivisible. For example, in the case of agricultural land, the plot of land is simply divided into the corresponding proportional parts. Alternatively, the land is sold and the proceeds divided according to the stipulations.

In the case of a house, being indivisible, the situation is a little more complicated. The law stipulates that no co-owner should be forced to remain in a joint ownership. Any of them may request that the common property be divided when they wish to do so. In other words, they can demand that the property be sold or that they be paid their share. If no agreement is reached, legal action can be taken to end the joint ownership. Here are some steps for the dissolution of a joint tenancy:

- Sale of the property sale of the property: it is possible for all co-owners to sell their shares to a third party, or for one of them to buy the shares of the other co-owners.

- Valuation of the property when the co-owners do not agree on the value of a property when it is to be divided, or when one of the co-owners who intends to buy the other parts does not agree with the price they are asking, it is advisable to ask for an official valuation. In this way, it will be possible to have a reference price for the sale.

- Legal proceedings depending on the context of the indivision, it is possible to initiate an inheritance division procedure, a liquidation procedure of the matrimonial property regime (in the case of separations with a common home) or a procedure for the division of the common property.

Tenancy joint tenancy

In a leasehold joint tenancy, all owners must reach an agreement to this effect. If the co-owners do not reach a unanimous agreement on the rental of the co-ownership property, the rental can be carried out if so required by the majority of the owners, even if one of them refuses.

However, the Civil Code provides that, in the absence of unanimity, the tenancy may not exceed a maximum period of six years. If it is intended to exceed that lease term, there should be unanimous agreement by all co-owners.

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