Ending co-ownership of shared property
The office of lawyer Ali Barakat in Baghdad sets out the rules on ending co-ownership of shared property, as they appear in Civil Code No. 40 of 1951, published in the Iraqi Official Gazette, issue 3015, of 8/9/1951. The page explains agreed partition, judicial partition, and sale of the commonly owned property if it cannot be partitioned.
The rights of co-owners in commonly owned property
If two or more persons own a thing, they are co-owners of it in common, and the shares are treated as equal unless evidence shows otherwise, under article 1061, first paragraph. Each co-owner owns his undivided share completely, and may use and exploit it in a way that does not harm the others, and may dispose of it by sale, mortgage or other forms of disposition even without their consent, under paragraph 2 of the same article. A co-owner may lease his undivided share to a co-owner or to a third person, under paragraph 3. Each co-owner may take the measures required to preserve the thing, even without the agreement of the others, under article 1066.
These rights do not prevent a request to leave the co-ownership. Ending the co-ownership is a separate path, and it is the subject of this page, whether it takes the form of an agreed partition, a claim before the Court of First Instance, or a sale if the property cannot be partitioned.
Agreed partition and its registration
Each co-owner may demand partition of the commonly owned property unless he is compelled to remain in common by a text or a condition, and a condition may not postpone partition for more than five years. If the co-owners agree to remain in common for a longer period or for an indefinite period, the agreement is effective only for five years, and the condition binds the co-owner and those who succeed him, under the opening of article 1070.
The co-owners, if there is no ward among them, may partition the commonly owned property by agreement in the manner they see fit, under article 1070, paragraph 1. An agreed partition of immovable property is completed only by registration at the Real Estate Registration Department, under paragraph 2. That rule meets the rule in Real Estate Registration Law No. 43 of 1971 that an immovable disposition does not conclude except by registration. The creditors of each co-owner may challenge the partition if it involves fraud or harms their interest, under paragraph 3.
An oral agreement, or an unregistered paper, does not complete the partition of immovable property. The Real Estate Registration Department in whose area of work the property lies is approached for that registration, as explained on the page Real Estate Registration Departments in Baghdad.
Approaching the Court of First Instance
If the co-owners do not agree on partition, or if there is a ward among them, the co-owner who wishes to leave the co-ownership may apply to the Court of First Instance to end it, under article 1072, first paragraph. If the court finds that the commonly owned property can be partitioned, it orders the partition. The property is treated as capable of partition if it can be divided without depriving any co-owner of the use intended from it before partition, under paragraph 2.
If the commonly owned property is immovable, the land is surveyed and parcelled on the basis of the smallest share, taking account of locations, quality and all other advantages, and, so far as possible, giving each share its own right of way, watering and drainage and other easements. The value of the shares is fixed by agreement of the co-owners themselves; if they do not agree, the judge fixes it with the assistance of an expert, under paragraph 3. That is the expert's role in valuing and identifying the shares. It does not replace the court's judgment.
Co-owners of commonly owned property may not demand that the co-ownership be ended if it appears that the purpose for which the property was prepared requires that it remain permanently in common, under article 1081. That is a limit on the request to end co-ownership. It is mentioned here because some parts prepared for common use may fall within that meaning, without this page extending the limit beyond what the article states.
Sale if the property cannot be partitioned
If the court finds that the commonly owned property cannot be partitioned, it gives judgment for its sale, under article 1073, first paragraph. In that case the court, on an application by the plaintiff or by one of the co-owners, assesses the fair price with the assistance of experts. If the plaintiff accepts the sale of his share at the assessed price, the purchase is offered to the other co-owners, who may express their wish within fifteen days from the date they are notified. If all or some of the co-owners agree to buy at the assessed price, the share is sold to those who wish to buy, equally among them. If one of the co-owners wishes to buy it at a higher price, the bidding is held among the co-owners alone and the share is sold to the highest bidder, under paragraph 2.
If the plaintiff does not accept the sale at the assessed price, or if no co-owner wishes to buy, and the plaintiff maintains his request, the whole of the commonly owned property is sold in the manner prescribed by law and the price is divided among the co-owners in proportion to their shares, under paragraph 3.
These steps are rules of statute. They are not a model petition or pleading. Registration of what results from the partition or the sale at the Real Estate Registration Department remains required for the immovable right to pass, under the Real Estate Registration Law. Preemption when a share in a commonly owned dwelling is sold is the subject of the preemption page, and it is not to be confused with partition of co-ownership.
Periods mentioned in the articles
The Civil Code states numbered periods in the articles on ending co-ownership. They are set out here as they appear in the text.
| Article | Period |
|---|---|
| 1070 | A condition postponing partition is effective for no more than five years |
| 1073 | Fifteen days from notification for co-owners to express a wish to buy the share at the assessed price |
Legal basis and sources
- Civil Code No. 40 of 1951 (Iraqi Official Gazette, issue 3015 of 8/9/1951) — Articles 1061, 1066, 1070, 1072, 1073 and 1081
- Real Estate Registration Law No. 43 of 1971 (Iraqi Official Gazette, issue 1995 of 10/5/1971)
Frequently asked questions
Is the partition of a shared property completed merely by the co-owners' agreement on paper?
An agreed partition of immovable property is completed only by registration at the Real Estate Registration Department, under article 1070, second paragraph. The co-owners' agreement determines the method of partition if there is no ward among them, but its completion for immovable property depends on that registration.
To which court is a claim to end co-ownership brought if the co-owners do not agree?
The Court of First Instance is approached, under article 1072, first paragraph, if the co-owners do not agree on partition or if there is a ward among them. The court orders partition if the property can be partitioned, or orders sale if it finds that the property cannot be partitioned, under articles 1072 and 1073.
For how long may a condition postpone remaining in co-ownership if the co-owners agree to delay partition?
A condition may not postpone partition for more than five years. If the co-owners agree to a longer period or to an indefinite period, the agreement is effective only for five years, under article 1070.
Related topics and articles
- 01Preemption of property: who may claim it and when the claim is not heardThe Civil Code preemption right: it is limited to a co-owner of a shared dwelling; notice within fifteen days; no claim after six months.
- 02Ownership of floors, apartments and common partsOwnership of floors, apartments and common parts under Law 61 of 2001 and Civil Code articles 1082 to 1095, and the owners' association.
- 03Real Estate Registration Departments in Baghdad, Karkh and RusafaFiling at a Baghdad Real Estate Registration Department under Law 43/1971: venue follows the department's area of work, the property and its register.
- 04What a landlord reviews before and after a lease in BaghdadWhat a Baghdad landlord reviews before and after a lease under Rent Law 87/1979 and the Civil Code.
- 05Sale or mortgage and the real-estate tax step in governorates not organised in a regionSale or mortgage and the real-estate tax step in governorates not organised in a region, under Law 162/1959 and Land Registration Law 43/1971.