Part Ⅲ Rights In Rem
Chapter 2 Ownership
Section 4 - Co-Ownership
When several persons have the ownership of a thing in proportion to their own respective shares, they are co-owners.
If the shares to which each co-owner is entitled are not known, they are presumed to be equal.
Each co-owner is, in proportion to his own share, unless otherwise provided by a covenant, entitled to use and to acquire the profits of the thing held in indivision.
Each co-owner may freely dispose of his own share.
The disposition of, the alteration of and the creation of an encumbrance over a thing held in indivision shall only be made with the consent of all the co-owners.
Unless otherwise provided by a covenant, the management of the thing held in indivision, the consent of more than half of the Co-owners whose holding of ownership is more than half of the total share shall be required. But if the holding of ownership is more than two thirds, the numbers of consenting co-owners need not be taken into account.
If the management in accordance with the preceding paragraph is obviously unfair, the disagreeing co-owner may apply to the court for the alternation.
When the management of the preceding two paragraphs cannot be maintained because of the change of circumstance, the court may rule an alternation on the application of any of the co-owners.
The co-owners, with intent or gross negligence, pursuant to the first paragraph of this article, pass the resolution of the management which caused damages to other co-owners, shall be jointly and severally liable to the damages suffered by the opposing co-owners.
In regard to simple repairs and such other act for the preservation of the thing held in indivision, each of the co-owners is entitled to make it alone.
Each co-owner may exercise the right of ownership against the third party for the whole thing held in indivision. However a claim for restoration of the said thing may only be made for the common interests of all the co-owners.
Unless otherwise provided by a covenant, the costs of management and other charges relating to the thing held in indivision shall be born by all the co-owners in proportion to their respective shares.
When one of the co-owners has paid more than the share incumbent on him for the charges relating to such thing held in indivision, he is entitled to claim a reimbursement from the other co-owners in proportion to their respective shares.
Unless otherwise provided by the statutes, each co-owner is entitled to demand at any time the partition of the thing held in indivision, except in consequence of the purpose of using such thing that makes partition impossible, or a covenant that provides a period of non-partition.
The period of non-partition of such covenant as specified in the preceding paragraph shall not exceed five years. Where a period exceeding five years has been agreed upon, it shall be reduced to five years. However, if the covenant of the real property held in indivision has an agreement on the management, the period of non-partition shall not exceed thirty years. Where a period exceeding thirty years has been agreed upon, it shall be reduced to thirty years.
In the case of the preceding paragraph, if there is significant cause, each co-owner is still entitled to demand at any time the partition of the thing held in indivision,
The partition of the thing held in indivision can be made in accordance with the method agreed by all the co-owners.
If the method of partition cannot be agreed upon, or the co-owner refuses to fulfill the deed of partition because of the completion of the prescription after making an agreement, the court may, on the application of any of the co-owners, order such partition to be made according to either of the following:
(1) The distribution of the thing held in indivision itself to every co-owner. If it is difficult to distribute the thing held in indivision itself to every co-owne, the thing held in indivision itself can be distributed to some of the co-owners.
(2) The sale of the thing held in indivision and the distribution of the net proceeds to the co-owners, if there is an obvious difficulty in distributing the thing held in indivision itself. The distribution of some parts of the thing held in indivision to every co-owner, together with the sale of other parts of the thing held in indivision and its distribution of net proceeds to every co-owner.
In the case of the distribution of the thing held in indivision itself, if some of the co-owners can not receive a distribution or cannot receive a distribution in proportion to their own shares, they may be compensated in money.
In the case of the distribution of the thing held in indivision itself, the thing held in indivision can be partially maintained in indivision in consideration of the interests of the co-owners or other necessary circumstances.
If the same group of co-owners owns several real properties, unless otherwise provided by the statute, the co-owner is entitled to claim to merge and then partition.
If the co-owners of several adjacent real properties are partially the same, the co-owner who owns a share to each real property is entitled to claim to merge and then partition with the consent of other co-owners whose holding of ownership are more than half of the total share of each real property according to the preceding paragraph. However, if the court considers that to merge and then partition is improper, it may still be partitioned respectively.
In the case of the sale of the thing held in indivision, under the same terms and conditions, the co-owners have the right of first purchasing to buy the thing held in indivision, unless the buyer is another co-owner. If two co-owners are willing to exercise the right of first purchasing, the buyer shall be decided by drawing lots.
The co-owner acquires the ownership of the distinct part when the partition is effective.
When the thing held in indivision has been partitioned, a mortgage or the lien on the respective share is not thereby affected, except any of the following cases, such rights shift to the distinct part of the mortgagor or the lienee:
(1) The right-holder agrees to partition.
(2) The right-holder has participated in the litigation for the partition of the thing held in indivision.
(3) The right-holder is notified of the partition litigation and fails to join.
The provisions of the first and the second paragraph of Article 881, or the first paragraph of Article 899, shall apply mutatis mutandis to the exception of the preceding paragraph with the money distribution or the money compensation.
In the case of the third paragraph of the preceding article, if it is the partition of real property, the co-owner who shall be reimbursed has mortgage on the distinct part of the person who shall reimburse to such an extent as the amount of compensation.
The mortgage of the preceding paragraph shall be recorded at the same time the partition of the thing held in indivision is recorded. Such mortgage shall have priority over the mortgage of the exception of the second paragraph.
Each co-owner in proportion to his share bears a liability or warranties the same as that of a seller in regard to the things which the other co-owners have acquired by partition.
After the partition of a thing held in indivision, each participant shall preserve all documents relating to the thing which he has acquired.
After the partition of a thing held in indivision, all documents relating to the said thing shall be preserved by the person who has acquired the largest portion of the thing. If no person has acquired a larger portion, the partitioners shall determine the person who shall preserve the said documents by agreement, and if it cannot be determined by agreement, the person shall be nominated by the court on the application of the partitioners.
Each partitioner is entitled to claim the use of the documents preserved by the other partitioners.
The covenant of the use, management, partition or partition inhibition or the decision made between the co-owners of the real property according to the first paragraph of Article 821, is bound to the share transferee or the person who acquires the right in rem after its recordation. The same rule shall apply to the management which a court has ruled that has been recorded.
The agreement and decision upon the thing held in indivision or the order made by the court between co-owners of personal property shall also bind the share transferee and the person who acquires the right in rem, but only when such person knows or should have known of such case while transferring or acquiring.
When the share of the thing held in indivision is transferred, the transferee is jointly and severally liable for the charges arising from the use, management, or other matters related to the thing held in indivision.
Where several persons who constitute a relationship in common according to the provisions of statutes, customs or juridical acts hold a thing in common by virtue of the relationship in common, such persons are owners-in-common.
The relationship in common through juridical acts of the preceding paragraph shall only be constituted if there are statutes or customs.
The rights of each owner-in-common extend to the whole thing held in common.
The rights and duties of the owners-in-common are determined according to the statute, juridical act or custom from which the relationship in common is derived.
The provisions of Article 820, Article 821 and Article 826-1 shall apply mutatis mutandis to the ownership-in-common.
Unless otherwise provided by statutes, the disposition of the thing held in common and the exercise of other rights relating to the same shall be made with the consent of all the owners-in-common.
For the duration of the relationship in common, neither of the owners-in-common shall demand the partition of the thing held in common.
The ownership-in-common is extinguished with the termination of the relationship in common or by the transfer of the thing held in common.
Unless otherwise provided by statutes, the provisions governing the methods relating to the partition of the thing held in indivision shall apply mutatis mutandis to the partition of the thing held in common.
The provisions of this section shall be mutatis mutandis applied when rights over property other than ownership are held in indivision or in common by several persons.