15 June 2014

In a judgment dated 20 September 2013, the Court of Cassation ruled that article 815 of the Civil Code concerning terminating  a co-ownership arrangement does not apply to voluntary co-ownership.

There has been ongoing discussion for quite some time regarding whether or not article 815 of the Civil Code applies in the case of voluntary co-ownership.

Traditionally, it was held that the field of application of article 815 of the Civil Code was limited to ordinary co-ownership. The idea is that, insofar as the participants freely and fully chose co-ownership, they cannot claim the division thereof on the basis of article 815, since this would be incompatible with article 1134 of the Code and the rule embedded in it according to which agreements between parties have to be respected by them as if it were statutory rules.

More recently, a more general application of article 815 has been defended by some scholars, according to which article 815 would also apply to voluntary co-ownership.

In a judgment dated 20 September 2013, the Court of Cassation put an end to this discussion, ruling that article 815 of the Civil Code does not apply in the case of voluntary co-ownership.

This judgment shows that, for notarial practice, it is becoming even more important to include termination clauses in deeds. When purchasing real property in co-ownership, it seems wise to stipulate that the co-ownership is entered into for a limited period only (e.g. for five years), with automatic extension unless one of the parties expresses the opposite intention. Otherwise, one risks being forced to stay in a co-ownership situation even though one of the parties no longer wishes to do so. The only remedy then available to that party would seem to be to seek to have the other party's refusal to end the co-ownership held to be an abuse of right.