We often come across disputes between heirs over properties owned jointly between them, whether they are houses, agricultural lands, or estates owned jointly by the heirs, and each heir wants to be independent of his inheritance individually and therefore resorts to the judiciary to separate and set aside a share. But first, we must clarify…
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What does common money or ownership over common mean?
It is ownership that falls on specific money in particular, owned by more than one person, such that each person owns a known but unspecified share of the money (for example: a person owns a house with his daughters that they inherited from their father, such that the brother owns 50% and two sisters each own 25% of the house Individuals may use, exploit, and dispose of a thing, but this exploitation is restricted to each partner to the extent of his share in it.
How does communism arise? How is each partner's share determined?
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Sharedness usually arises from inheritance. When the deceased dies, he leaves multiple heirs, and his money is transferred to them in common in proportion to the share of each of them.
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It may also arise from the contract. For example, several people buy a property jointly.
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Or from a will, such as a person bequeathing specific money to two or more people, or something else.
As for the amount of the common share belonging to each of the joint owners, it is determined either in the legal disposition that creates the jointness (such as a sale, gift, or will) or through the legal shares in the inheritance. However, communism, because of the resulting competition between the rights of the partners, often leads to the emergence of severe disputes and problems between them, which hinder the beneficial exploitation of the common thing, so it is more appropriate to end communism by dividing the common money, which is called “separating and setting apart.” Common money: each partner has a separate part of it that he owns as an investment.
What does sorting and setting aside common money mean? What are the common types of money division? Does common money always accept division?
It is when one or more of the heirs request to determine his share of this property under a claim called sorting, setting aside and dividing the common property so that each person gets his part of it individually over the rest of the heirs.
The first type of division is called in-kind division:
It means every heir who obtains a specific share of the property and obtains a title deed from the competent authorities. This is called the in-kind division. However, sometimes it becomes clear before the court, after assigning a specialized engineering expert, that it is impossible to divide the house/property/farm in kind for several reasons:
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It may be due to the large number of heirs and their small legal share, 3% or 2%...
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This may be due to the small area of the property itself being divided, and division is not acceptable, of course. This is all by the conditions and standards of the competent authorities (the municipality).
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Or the division may result in damage or a significant decrease in the value of the property.
In this case, any partner may sell his share to another partner. If it is not possible to sell the share, this partner may ask the judge to sell the entire property at a public auction. So the state of communism ends by distributing its price among all the owners of the commune, each according to his share. The judge may order that the bidding be limited to the partners first if one of them requests that. (For example, one of the partners buys the share of the rest of the partners) and in some cases, selling the property requires obtaining approval for the sale from the competent authorities (approval from the Ministry of Presidential Affairs). In all cases, the sale request will not be accepted if it results in greater harm to the remaining partners.
If it becomes clear to the judge that selling a property may result in harm to the remaining partners, the sale request will be rejected.
It is not accepted to submit a new application to sell from the same person before one year has passed from the date of non-acceptance of the previous application or the disappearance of the damage, whichever is earlier.
The second type of division is called the division of benefit or convenience.
In this type of division, it does not entail the issuance of title deeds, and ownership of the property remains shared between the heirs. In dividing the benefit, the property owned in common is divided between the heirs into separate parts, and the partners agree that each of them will be allocated the benefit of a separate part equal to his share in the common property, ceding to the rest of his partners in return the benefit of the remaining parts.
Example: A 3-story house (each inheritor is assigned a specific floor that he benefits from without the rest of the floors, and the title deed remains one.
But it may happen that the utility cannot be divided as well! In cases where the number of joint owners is large and the area of the property is small. In this case, the only way to end the common situation is to sell the property.
Example: Two partners share a piece of commercial land. One of the partners rejects investment opportunities to exploit the land, which causes harm to the other partner by not being able to exploit and invest his share in the share. Therefore, he resorts to the judiciary to end the share of the share on the basis that the continuation of the share of the share hinders him from exploiting his property. Then it became clear during the deliberations and after the expert was assigned that dividing the commercial land would reduce its market value, and when his share was offered for sale to the other partner, he refused to sell, and he also refused to buy the share from the partner. Here, this partner has the right to request the sale of the entire land and distribute the price to the partners by the text of Article 1166, as amended by the law. Civil Transactions Law.
It is also worth noting the arrangement contained in Article 1166 of the Civil Transactions Law regarding the circulation of wealth and the rules of individual ownership of public order, and it is not permissible for the judiciary to violate them. This is if it is not possible to divide the property in kind or if it would cause significant damage to the value of the property to be divided.
In the first stage: One of the partners (requesting the division) may sell his share to the other partner or ask the judge to sell it in the manner specified by the law. If it is not possible to sell the share, sell the share
In the second stage: The partner (requesting the division/sale) may request the sale of the entire item in the manner specified in the law, and the judge may limit the bidding to the partners alone if one of them requests. In all cases, the sale request will not be accepted if it results in greater harm to the remaining partners.
This means: It is not permissible for any of the joint owners who cannot be divided due to the small share of the person requesting the division (e.g. 12%) to request permission to sell the entire property at public auction while restricting the bidding to the partners for the first time and before it is proven that it is impossible to sell his share.
The original grant land may not be sold as long as it is vacant land on which no construction has been built.
Grant land: If the grantee builds on it and constructs a house, the house owner may sell the house to him after obtaining approval.
Public housing, in the case of joint heirs, may be divided in kind or beneficially. If a division is not possible, it may be sold at public auction and in the manner specified by law after obtaining the approval of the authority responsible for the sale. Bidding may first be limited to the partners, and if the partners do not wish to bid, the bidding shall be limited to citizens of a country. The UAE.
A public residence owned equally by the spouses. When a divorce occurs, the house may not be divided in kind except after 3 years have passed since the divorce or if it is a major irrevocable divorce. By assigning an Indian expert from the Real Estate Disputes Settlement Center to determine the possibility of real division or not, the same applies to beneficial division.
For further inquiries, do not hesitate to contact us. At Al Dhaheri & Associates Law Firm, we specialize in cases of dividing common property, sorting, setting aside, and inheritance issues.
Thus, we reach the end of our article entitled Dividing Common Money, stressing at the same time the necessity of using the best specialized lawyers in our office to provide sound and correct legal solutions by the best legal and judicial practices, by visiting us in one of our branches in the cities of Al Ain and Abu Dhabi or by contacting us.
