The court partition of real estate is a mechanism for terminating co-ownership between two or more persons in cases where the co-owners have failed to reach a voluntary agreement regarding the allocation into their individual ownership.
A voluntary partition contract represents a much faster, less expensive, and simpler way to terminate co-ownership of real estate. However, since the law imperatively requires that such a contract must be signed by all co-owners, the refusal or unwillingness of even one of them makes the out-of-court termination of co-ownership impossible.
When such a situation arises, court partition becomes the only lawful way for compulsory and complete termination of co-ownership.
What is a court partition of real estate?
Court partition of real estate represents a special two-phase judicial proceedings.
The first phase is the admission of the partition. In this phase, the court assesses which properties are subject to partition, between which persons and in what shares or quotas the partition should be made.
The second phase is the execution of the partition. This is the substantive stage of the proceedings, which concludes with the physical division of the properties between the co-owners – by allocating them into individual shares (with or without additional payment) and/or the sale of the property/properties at public auction.
IMPORTANT! Each of the two phases concludes with a separate decision, which constitutes a separate court act which may be appealed before a higher court.
Which is the competent jurisdiction on court partition cases?
Cases concerning court partition of real estate fall under the jurisdiction of the district courts based on the location of the property. Jurisdiction is not affected by either the number of properties or their value.
IMPORTANT! When the partition includes properties located in different regions/cities (for example, one property in Sofia and another in Varna), the plaintiff initiating the partition claim may freely choose whether to file the case before the Sofia District Court or the Varna District Court. This choice of venue made by the plaintiff is not subject to judicial review.
What type of properties may be a subject of court partition?
Any property, including indivisible ones, may be subject to court partition, such as: regulated land plots (RLP), unregulated land plots, agricultural land, buildings and separate objects in buildings (apartments, studios, garages, offices, commercial premises, etc.).
What fees are payable in court partition proceedings?
A specific feature of court partition cases is that no state court fee is payable upon filing the claim. Such a fee is paid only at the end of the proceedings — upon delivery of the court decision in the second phase of the partition, when a specific property and/or monetary amount is allocated to each co-owner.
The state fee owed by each co-owner at the conclusion of the proceedings amounts to 4% of the value of the share awarded in their favor.
When registering the claim in the Real Estate Register, according to the case law of the Supreme Court of Cassation, a minimum fee of BGN 10 is payable.
Are attorney’s fees recoverable in partition proceedings?
One of the specific features of court partition cases is that attorney’s fees paid by each party remain as incurred and are not recoverable from the opposing party. This rule is imperative and applies regardless of fault or which party initiated the proceedings.
What is the main purpose of court partition proceedings?
The main purpose of court partition is to terminate co-ownership so that each co-owner receives an individually owned property in their own real share. If the properties allocated to the parties differ in value from their respective shares under the co-ownership, the difference is equalized by monetary compensation paid by the party receiving the larger share. The properties (or shares) distributed in the partition should be as equal in value as possible, and the equalization payments should be minimal, insofar as this is practically achievable.
However, this primary goal cannot always be achieved, particularly when the subject of the partition is an indivisible property.
When is a property indivisible?
A property is considered indivisible when it is legally and/or technically impossible to divide it into two or more independent properties of the same kind.
Depending on the type of property subject to partition, indivisibility may arise due to different factors and legal criteria, as follows:
A. For regulated land plots (RLP) – for example, a regulated land plot of 400 sq.m. or with a frontage of 10 meters may be indivisible, as the law prescribes minimum size and frontage parameters for each RLP;
B. For agricultural lands – for example, an agricultural field of 3,000 sq.m. may be indivisible, since legislation specifies minimum plot sizes for various types of agricultural land (fields, meadows, vineyards, etc.);
C. For buildings or separate objects in buildings – for example, a building or an apartment may be considered indivisible if it cannot be divided into several independent units that comply with architectural, structural, and legal requirements for functional independence, such as: the inability to provide a separate entrance for each unit; the absence of a separate sanitary facility for each unit; failure to meet the minimum height requirements for premises, etc.
What happens if a property subject to partition is indivisible?
When it is established during the proceedings that a property is indivisible, several procedural options exist:
First, if several indivisible properties are included in the partition and their number corresponds to the number of co-owners, each property may be assigned as a whole to a different co-owner. Thus, each indivisible property becomes solely owned, and there is no need for physical division.
Second, if only one indivisible property is subject to the partition, the court may order its sale at public auction. After the sale, each co-owner receives a portion of the sale price corresponding to their ownership share in the former co-ownership.
IMPORTANT! When a property is sold at public auction, each co-owner (party to the partition) is entitled to participate in the bidding process.
Another possible solution, when a single indivisible property is subject to partition, is for one of the co-owners to request that the property be awarded solely to them, subject to monetary compensation to the other co-owners for the value of their respective shares.
IMPORTANT! The assignment of an indivisible property into the sole ownership of one co-owner in partition proceedings is permitted only in specific cases expressly provided by law and under strictly defined legal conditions and criteria.
What happens when the property is divisible and must be physically partitioned?
When the property is divisible and must be physically separated, the procedures undertaken during the second phase of the court partition depend primarily on the type of property, as follows:
A. For regulated land plots (RLP) – the formation of two separate regulated plots from one existing plot is carried out through a procedure for amendment of the detailed regulation plan;
B. For agricultural lands – the formation of two separate agricultural properties from one existing agricultural plot is carried out through a procedure for amendment of the cadastral map;
C. For buildings or separate objects in buildings – the functional division of two separate units within a single building, or the division of one existing unit into two separate ones, is carried out through the preparation and approval of investment (architectural) projects for the reconstruction or reconfiguration of the building/unit, followed by the issuance of a construction permit.
Can a co-owner claim reimbursement of expenses incurred for the common property?
Yes. In court partition proceedings, any co-owner may claim from the others reimbursement of their proportional share of the expenses personally incurred for the maintenance, improvement or management of the jointly owned property. The co-owner making such a claim must provide documentary evidence proving the expenses made.
IMPORTANT! A request for settlement of accounts (claims between co-owners) must be made no later than the first court hearing of the second phase of the partition proceedings. This deadline is preclusive — failure to raise the claim in time results in the loss of the right to do so at a later stage of the case.
This article outlines only a small portion of the numerous specifics inherent in partition proceedings. Court partition is a complex process, often associated with various legal and procedural risks, depending on the circumstances of each individual case — such as the number and type of properties involved, the number of co-owners, and their respective ownership shares. In this regard, if you need a legal consultation and/or representation in initiating a court partition case, or if you have already received a summons in such a case brought against you, Dilyan Kolev, attorney-at-law can provide you with comprehensive legal assistance and court representation/litigation, ensuring the maximum protection of your rights and legitimate interests.