Partition Action
Partition Action
The partition suit is a legal instrument that allows a co-owner to force the dissolution of the community of owners. Every co-owner has the right to take this step, even without the consent of the others. The action is directed against all other co-owners, regardless of whether they are registered in the land register or only hold shares extra-judicially.
Joint ownership of a property can become a burden, for example after a divorce or inheritance. If the co-owners cannot agree on an amicable solution, there is often only one way out: the partition suit.
Sebastian RiedlmairHarlander & Partner Attorneys „Wer rechtzeitig handelt, kann im Teilungsverfahren nicht nur Zeit und Kosten sparen, sondern auch unfaire Nachteile vermeiden.“
Participation of all Co-Owners
A partition suit must be directed against all other co-owners, even if some have already agreed to a partition out of court. Since all co-owners act jointly as a party, the behavior of one individual affects the entire process.
Objective of the Partition Suit
The partition suit implements the contractual claim to dissolve the community of owners. It is directed against all co-owners, whether they are registered in the land register or not.
The goal: Either the property is divided or auctioned.
Physical Partition vs. Civil Partition
If several people jointly own a property but cannot agree on its use or division, each co-owner can demand the dissolution of this community. The law provides for two ways to do this: the physical partition and the civil partition.
Real Division
In the case of physical partition, the joint property is actually divided. Each person gets their own, clearly defined part of the property. This solution is particularly useful if the property is large enough or can be separated by establishing condominium ownership. The physical partition is usually the more economically gentle solution because no sales process is necessary.
Prerequisite for a Physical Partition
In order for a physical partition to be considered at all, certain legal and factual requirements must be met:
- The structural and technical conditions must allow a clear and permanent separation of the property. This can be done by dividing the property or by establishing condominium ownership.
- The division must be economically viable.
- There must be no public-law obstacle.
- The division must not violate the law or public policy.
Civil Partition
However, if such a division is not possible or unreasonable, for example because the property is too small, no structural separation is feasible, or the parties involved cannot agree on the division, a civil partition will take place. In this case, the entire property is auctioned off, usually publicly through the district court. The co-owners receive the proceeds from the auction proportionally according to their quota.
Select Your Preferred Appointment Now:Free initial consultationLand Registry Entry and Protection
If a partition suit is filed, it can be noted in the land register. This note protects against unwanted dispositions by third parties and secures the later legal force of the partition judgment, even against later buyers. Nevertheless, the sale of co-ownership shares remains possible.
Effect of the Partition Suit
The partition suit is typically used after inheritances, divorces, or in the case of quarreling co-owners. Any party involved can bring it, the only important thing is: All other co-owners must be part of the proceedings.
Sebastian RiedlmairHarlander & Partner Attorneys „Viele Miteigentümer zögern zu lange, dabei kann man mit einer klaren Klagestrategie oft rasch eine Lösung erreichen“
Obstacle to Partition
In principle, every co-owner may demand the dissolution of the community, which results from § 830 ABGB. In certain situations, however, this right may be temporarily restricted: This is referred to as a so-called obstacle to partition.
Inopportune Time
One speaks of inopportune time when external circumstances do not permanently prevent the division, but would be disadvantageous for all parties involved at the moment.
Inopportune time does not mean that the claim is void, but only that it cannot be enforced at the present time.
Disadvantage for the Others
In certain cases, an immediate division may constitute an unreasonable hardship for individual co-owners. The court then examines whether the enforcement of the partition claim violates the principle of good faith. Only if the asserted disadvantage is of a temporary nature and ceases to exist in the foreseeable future, the proceedings can be postponed for a limited period.
Court Jurisdiction
The court at the location of the property has jurisdiction. Whether the district or regional court decides depends on the amount in dispute. The decisive factor is no longer the standard value, but the so-called
Risks and Costs
In partition proceedings, all joint litigants are generally jointly and severally liable for the costs of the proceedings. Even those who immediately acknowledge the claim may have to pay under certain circumstances. In such cases, our law firm specifically focuses on individual cost savings and process-economic strategy.
Your Benefits with Legal Assistance
- Legal assessment: Examine physical vs. civil partition
- Procedural strategy: Identify deadlines, court, parties
- Judicial representation: Action, partition judgment, execution
- Land registry security: Use annotation in a targeted manner
