What Are Your Rights and Obligations as a Co-owner
– Co-divider: definition
– Rights and obligations of a co-owner
– Co-dividend: private use of undivided property
The co-divider holds rights to property without physically owning the property in its entirety.
A co-divider – or undivided owner – is the person who holds rights in a property in concurrence with the other co-division holders; each co-divider has an abstract “share” of the property.
In practical terms, the following are co-dividers by operation of law:
– heirs, from the opening of the estate to the partition of the property;
– divorcing spouses, from the pronouncement of the divorce to the partition of the common property;
– partners of a company in liquidation, from the dissolution of the company to the division of the assets.
Good to know: there must be at least two people to be a co-divisor; when the estate has only one heir, there is no situation of indivision.
The beneficiaries of a gift in joint ownership or people who choose to purchase in joint ownership are also joint owners.
Note: the usufructuary and the bare owner of the same property are not co-dividers; the rights held by the co-dividers must be of the same nature.
Rights and obligations of the co-divisor
Indivision is governed by a legal regime designed to protect the rights of each co-divider over the property.
Thus, the co-divisor receives the fruits of the property in joint ownership: if the property is rented or sold, the co-divisor receives money in proportion to the share of the property he holds.
Example: A holds 60% of the apartment, and B holds 40%; the apartment is rented for 200: A receives 120, and B gets 80.
Likewise, the co-divisor must pay the undivided expenses in proportion to his share.
The co-owner who enjoys the undivided property owes the other co-owner an indemnity for enjoyment unless otherwise stipulated in the agreement.
The co-owner must respect the legal rules of undivided property management. The co-owner does not hold the undivided property alone but competes with the other co-owners. Under these conditions, the co-owner is not authorized to dispose of the property.
Note: the action to claim (the fact of legally claiming ownership of a property), when it concerns an undivided property and its purpose is to preserve the rights of each undivided co-owner, constitutes a conservatory act that each of the undivided co-owners can carry out alone and not with the unanimity of the co-owners.
The co-divisor has the right to leave the undivided property by requesting partition, either amicably or by judicial means.
Co-dividers: private use of property held in undivided ownership
When a property is held in undivided ownership, each undivided co-owner has, in principle, a right of enjoyment over the property. Consequently, if one of them makes private use of it or obtains an exclusive right of enjoyment following a judgment, he or she is liable for an occupation indemnity.
The payment of an occupancy indemnity is required if the other undivided co-owners are deprived of their rights. It does not matter if the undivided co-owner has exclusive use of the property he occupies.
Examples of case law: a father found himself the owner with his three sons of an apartment after the death of his wife. The judges considered that these undivided co-owners owed an occupation indemnity because, even if they did not live on the premises, they alone held the keys. In the same context, a wife had obtained from the judge the exclusive enjoyment of the marital home during the divorce proceedings and was ordered to pay an indemnity to her ex-husband. She had finally moved out and was not using her right of occupancy, but she alone held the keys to the home.
The fact that another person occupies the apartment does not exempt her from compensation.
Good to know: the occupation of the property by only one of the undivided co-owners is not, in principle, free of charge, but the undivided co-owners or a judge can decide that it will be. The family court judge can thus attribute, within the framework of his non-reconciliation order, the unrestricted use of the joint property to a spouse until the judgment is pronounced. It should be noted that when the ruling does not specify whether the private use is free or not, it is presumed to be paid for.
In the absence of an agreement between the undivided co-owners or provisional partition of the property, the indemnity due by the one who has private use of the property must be returned to the undivided co-ownership.
The injured undivided co-owners have up to 5 years to claim an occupation indemnity:
– in the case of divorce, this period starts from the decision pronouncing the payment of the indemnity as soon as it is no longer subject to appeal;
– in other cases, the indemnity is only due for the 5 years preceding the request. However, it is essential to remember that the undivided co-owner who occupies the premises can waive the prescription period.
Note: an undivided co-owner is not required to pay an occupation indemnity to the undivided co-ownership when he occupies an undivided property privately if he rents it under a verbal lease, even if the property’s rental value is much higher than the rent paid.