When a property is held by title of ownership by various owners, each co-owner may demand the partition of that property, and this irrespective of any agreement to the contrary. This situation may arise either voluntarily where the parties agree to hold in common a property or else involuntarily, where a property falls on various individuals through inheritance, irrespective of any prohibition of the testator.
When the individuals inherit a piece of land, this would usually involve dividing the property between the parties, often referred to at law as partitioning of the property, so each co-owner ends up with a piece of land equivalent to his share. Where there as many properties inherited as there are individuals inheriting, and these are of equal values, the exercise would be reduced to an agreement stating which co-owner will exclusively own each property.
However, not all property can be easily partitioned.
No individual is obliged to remain in the community of property. However, one must note an important limitation to this general principle of law, and that is; if such partition has been suspended by a will for a maximum period of five years, then none of the co-owners can call for a partition during such period.
Another limitation is that the testator may forbid the partition of a property among the co-heirs instituted by him, when all the heirs are still minors until the lapse of one year from the day in which the youngest attains majority. However, in such case the partition is not prohibited but only delayed until all co-heirs attain majority.
An agreement binding the co-owners to remain in this community of property is valid for a maximum term of five years, and this agreement can be renewed for another term, in all cases not exceeded five years. If the co-owners enter into a public deed stating that they agree not to proceed to partition for a term of five years, that agreement is binding, valid and enforceable against every co-owner. However, any agreement which stipulates a term exceeding five years will be null.
If there is no such agreement, every participant in a state of community irrespective of their share, irrespective of when they became a co-owner and irrespective of the will of the majority or of any of the other participants, may demand that the state of community be terminated. Hence, a co-owner can bar the sale of the common property and enforce the right to the division of the common property with each co-owner receiving a share in kind (as a physical part of the common property).
In cases where the common property can be divided conveniently in accordance with the shares of the different participants without the property being injuriously affected, the co-owners may demand the physical splitting up of the common property. However, where the common property cannot be so conveniently divided, compensation can be made with other common properties of a different nature but of equal value so that each co-owner can receive his share in kind.
In the case where the property can neither be conveniently partitioned nor can it be compensated in kind; it would be ineffective to try and enter into a public deed agreement before a Public Notary and the law provides for a sale by licitation.
A sale by licitation may take place with the consent of all the co-owners or by an order of the court. Therefore, the property will be sold and instead of a portion of the property, each co-owner will be compensated through monetary proceeds. This process would involve putting the property up for auction with the highest bidder acquiring it. It is also possible for the co-owners themselves to make a bid.
Partition may be demanded even if a co-owner enjoyed separately a portion of the property. The fact that a participant in the state of community is enjoying separately and exclusively an item of common property, does not bar the demand for partition.
Important to note that if the participant has had the exclusive enjoyment of the property in the state of community and has possessed it as if s/he were the sole owner for a period of thirty years, s/he would have acquired an original title through acquisitive period. In this case, such participant would have become the exclusive owner. If the immovable property belongs to churches or pious institutions the period is forty years.
If the thirty-year acquisitive prescription requirement is not satisfied, the occupier who is a participant in the state of community, enjoys absolutely no right of preference, no privilege, no entitlement when it comes to the partitioning of the common property. The effects of partition are that each co-partitioner will be deemed to have been the full and exclusive owner of the items of property which would have come to him on partition with retroactive affect from the date when the state of community came to exist. This includes any movables, immovables, corporeal or incorporeal that form part of his share. As a consequence, that co-partitioner will be deemed never to have had any right whatsoever on the other previously common property.