What is Partition of Joint Ownership?

What is Partition of Joint Ownership? | Real Estate Lawyer in Izmir

izaleişüyu

sim, law, (iza:leişüyu:), Arabic izāle + şuyūʿ

Dissolving a partnership in a property.

A lawsuit for the dissolution of co-ownership, also known as a partition lawsuit, is a type of lawsuit that can be filed by one of the co-owners (heirs) of a jointly owned property to end the co-ownership. If the lawsuit is successful, the co-ownership will end, and individual ownership will begin for each heir.

1. Under what circumstances can a lawsuit for the dissolution of a partnership be filed?

A lawsuit for the dissolution of co-ownership can be filed against other co-owners of movable or immovable property when one of the co-owners wishes to terminate the co-ownership and acquire personal ownership. For example, if four heirs have inherited a property, filing this lawsuit is necessary to sell the property and convert it into cash.

2. Stages of a Partnership Dissolution Lawsuit

Taşınmazın bulunduğu yer mahkemesinde açılan bu dava türünde, miras bırakanın birden çok taşınmazının olması durumunda usul ekonomisi ilkesi gereğince bir taşınmazın bulunduğu yer mahkemesi o davaya bakmaya yetkili kabul edilir. Bir başka anlatımla, örneğin miras bırakanın İzmir, Manisa, Aydın illerinde taşınmazı varsa bunlardan birinde dava açılabilir. Görevli olan mahkeme ise sulh hukuk mahkemesidir. Önceki örnekten devam edecek olursak davanın ” İzmir Sulh hukuk ” mahkemelerinde görüleceğini söylemek mümkündür. Davayı açan paydaş , maktu olarak belirlenen mahkeme harç ve giderlerini yatırır.

In this type of lawsuit, which has no winner or loser, all co-owners are equally affected by the outcome. Therefore, the costs of the partition lawsuit and attorney fees are distributed to the parties in proportion to their shares. The court dissolves the joint inheritance either through division in kind or through sale. Division in kind is the priority. The court divides the property and distributes it to the co-owners in proportion to their shares. For example, if the deceased had two houses and two heirs, the joint ownership is dissolved through division; if this is not possible, the property is sold and the proceeds distributed among the heirs.

3. Sale Procedure in Partnership Dissolution Cases

The sale is conducted through a sales officer, not through a court. The method of sale in a partition lawsuit is auction. However, if the partition lawsuit results in a sale where the co-owners unanimously agree that the sale should be conducted only among themselves, the sale will only take place among the co-owners.

4. What is the dispute regarding the ownership of improvements in a partition lawsuit?

In a partition lawsuit, a dispute may arise regarding the ownership of improvements, specifically concerning integral parts of the property such as buildings and trees. To resolve this dispute, a separate lawsuit is necessary. This lawsuit is a determination of ownership of the improvements. This determination lawsuit establishes which co-owner(s) owns these integral parts. To proceed with the partition lawsuit, it is necessary to wait for the outcome of the determination of ownership of the improvements lawsuit.

5. Partition Lawsuit in Case of Family Home Annotation

If a property has a "family home" designation on its title deed, a partition lawsuit cannot be filed. This is because the presence of a "family home" designation on the title deed implies that the property has been specifically designated for a particular purpose. As long as this designation remains on the title deed, a partition lawsuit cannot be initiated.

6. Is there a right of pre-emption in a partition lawsuit?

The right of pre-emption cannot be exercised in a partition lawsuit. The right of pre-emption is only granted to other co-owners if one of them wishes to sell their share to a third party. This is not the case in the dissolution of co-ownership.

7. How long does a partition lawsuit take?

In a partition lawsuit, the first step is to serve the lawsuit petition and its attachments to all heirs. This process is very easy and the case progresses quickly if the number of heirs is small or if they reside at the addresses they have provided. However, in some cases, the number of heirs may exceed twenty, and some of these heirs may reside abroad, as the lawsuit has not been filed and the division process not pursued for generations. In such situations, the notification process can be unnecessarily prolonged before the merits of the case are addressed. Therefore, working with a lawyer specializing in partition lawsuits is crucial. Knowledge of the property, the law regarding notifications, and continuous monitoring of the case, including contacting heirs if necessary, significantly speeds up the process. After all these stages, the property(ies) are examined by experts, and a report is written in the petition regarding whether the property can be divided into equal parts. After the report is served to the parties, the court hears the case.

The court's decision in a partition lawsuit takes approximately 8-10 months, depending on the court's workload. This period can be extended if one of the parties appeals. If the court rules for the sale of the property for cash, the property is re-examined, a process that takes about a month. The auction date set by the sales officer extends the process by approximately two months. With all these factors combined, the lawsuit can take an average of 15 months.

8. Is Submitting a Petition for Partition of Joint Property Sufficient?

Unfortunately, sample petitions for partition lawsuits shared online are not suitable for every situation. As mentioned above, due to the complexity of the process, address checks, and the submission of up-to-date land registry records, a single-page petition can lead to significant loss of rights and time. From procedural rules to objections and investigations necessary to ensure the property is sold at a high price so that co-owners receive a substantial share, all require legal expertise. Therefore, to ensure a positive outcome in a partition lawsuit, it is necessary to prepare a petition tailored to the specific case with the assistance of an expert lawyer.

For legal advice on this matter, please contact our expert team. Contact page.

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