By Dr Analise Magri – Junior Associate
I am part owner of a property held in common with four other people. Four of us wish to sell this property to a third party, however one of us is blocking our sale as he keeps on refusing to appear on the deed of sale. The price we intend to obtain from the sale is a just one. What can we do?
The scenario described above is more common than one can perhaps ever imagine. The joint ownership of property is a reality which arises through numerous ways, with the devolution of an inheritance taking the forefront.
Anyone who has ever found himself caught up in such a scenario can understand the struggle of selling a property when one co-owner constantly chooses to stomp his feet and refuse to sell. This was precisely the aim of the legislator when introducing article 495A into Chapter 16 of the Laws of Malta (the Civil Code) – to offer majority co-owners a ray of hope against their minority co-owners. As a matter of fact, the final goal of an action under article 495A would be to force the minority co-owners to appear on the final deed of sale of the property in question; ending once and for all the joint ownership of the property.
What are the requirements to kick-start such an action?
In order for an action under article 495A to be successful, the property must be held in common and must have been held in common for a period of more than three years. This effectively means that the owners of the property have been co-owners for at least three years. Failing such, the action would not result in its intended goal and would be destined to fail.
No Other Court Action
The law also spells out as a requirement the fact that no ulterior court proceedings would have been instituted in an attempt to divide the property. This requirement is easily cognisable as if the co-owners would have already taken a step to end once and for all the joint ownership of the property through an action for division, an action attempting to sell the property held in common would be erroneous.
A disagreement on the sale of the property is precisely the reason as to why the majority of the co-owners would resort to such an action. If all the co-owners are in agreement as to the sale of the property than there would be no existing reason as to resort to such court proceedings as all the co-owning parties would simply appear on the deed of sale.
Provided that all the requirements stipulated above are fulfilled, the majority co-owners can proceed to institute their action before the First Hall of the Civil Court under article 495A of the Civil Code.
What happens if a co-owner is unknown?
Co-owners may also face the reality that not all of the co-owners are in fact known. This reality is very often sparked when, following public registry searches, there results a share (or sometimes more) of the property which is unaccounted for. What happens in this case? How can you force someone to appear on a deed of sale when you do not know who that person is?
In circumstances such as the afore the action may still be instituted provided that all of the above-mentioned requirements would have been attained. The only difference lies in an additional procedure which would have to be adopted by means of which, following a declaration made by one of the majority co-owners confirmed on oath that a certain co-owner is unknown, curators are appointed in order to represent the share of the unknown co-owner. The action would then proceed to continue in the usual way as if all the co-owners would have been known from the start.
Therefore, if a group of majority co-owners would like to end once and for all the state of joint ownership they are currently in by selling the property to a third party, article 495A may be their only escape card.