Right of a co-owner to demand partition
No co-owner shall be obliged to remain
in the co-ownership. Each co-owner may demand the partition of the thing owned
in common, insofar as his share is concerned. (Art. 494, par. 1, Civil Code)
When is partition of the community
property at the instance of a co-owner not allowed?
1. When the co-owners have agreed to
keep the thing undivided for a certain period of time, not exceeding 10
years (Art. 494, par. 2, Civil Code);
2. When it is prohibited by the donor or testator for a period of which shall not exceed 20 years, when the thing was
acquired either by donation or succession (Art. 494, par. 3, CC);
3. When partition is prohibited by law,
such as in the case of party walls and the family home (Art. 494, par. 3,
CC);
4. When to do so would render the thing unserviceable for the use for which it is intended, although the co-ownership may
still be terminated in accordance with Art. 498 of the Civil Code (Art. 495,
CC)
a. The thing may be
alloted to one of the co-owners who shall indemnify the others.
b. If the co-owners
cannot agree that it be alloted to one of them, the thing shall be sold and its
proceeds distributed.
Agreement of co-owners not to partition the thing
1. Period must not extend more than 10
years
2. If it exceeds 10 years, the
stipulation is valid insofar as the first 10 years is concerned
3. There can be an extension but only
after the original period has ended
4. After the first extension, there can
be another extension, and so on indefinitely, as long as for each
extension, the period of 10 years is not exceeded
How partition is made
1. By agreement
between the parties or
2. By judicial
proceedings
Right of the creditors
The creditors or
assignees of the co-owners may take part in the division of the thing
owned in common and object to its being effected without their
concurrence. But they cannot impugn any partition already executed, unless
there has been fraud, or in case it was made
notwithstanding a formal opposition presented to prevent it, without
prejudice to the right of the debtor or assignor to maintain its validity
(Art 497, CC)
When the thing is essentially
indivisible
Whenever the thing is
essentially indivisible and the co-owners cannot agree that it be allotted
to one of them who shall indemnify the others, it shall be sold and its
proceeds distributed (Art 498, CC).
Partition shall not prejudice third
persons
The partition of a
thing owned in common shall not prejudice third persons, who shall retain the rights of mortgage, servitude or any other real rights belonging to them before the
division was made. Personal rights pertaining to third persons against the co-ownership shall also
remain in force, notwithstanding the partition (Art 499, CC).
Mutual accounting of
benefits
Upon partition, there
shall be a mutual accounting for benefits received and reimbursements for
expenses made. Likewise, each co-owner shall pay for damages caused by
reason of his negligence or fraud (Art 500, CC).
Co-owner liable for defects of title
and quality
Every co-owner shall,
after partition, be liable for defects of title and quality of the portion
assigned to each of the other co-owners (Art. 501, CC).
Effects of partition
1. Mutual accounting
for benefits
2. Mutual
reimbursement for expenses
3. Indemnity for
damages in case of negligence or fraud
4. Reciprocal warranty
for defects of title or quality
5. Each former
co-owner is deemed to have had exclusive possession of his part allotted
to him for the entire period during which the co-possession lasted
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