Based on the example above, if any of you are not well versed in inheritance law, we would preface by noting that property can be inherited in two ways: the first, under a will left by the deceased before his death, whereby the distribution of the property is carried out in accordance with the deceased’s wishes; and the second, by law — that is, 50% of the deceased’s property passes to the mother of the family and the remaining 50% is divided among all the children in equal shares.
So, after we have understood each heir’s share in the deceased’s estate, and where the inheritance also includes a real estate property of considerable economic value that can certainly improve many people’s lives, you will learn that not all that glitters is gold, and that receiving rights in land together with additional partners may drag you into court and even cause you to spend considerable sums of money.
So Where Do the Problems Begin?
Most problems converge on situations where there are disagreements regarding the management and possession of the property, or a deterioration in the relations between the parties that leads a holder of rights in the land to wish to realize his share. From here arise several matters for discussion: What is the fate of a real estate property that one party wishes to sell while the other partners refuse? Can the sale of the property be forced upon the parties? Do the conduct of the parties and unclean hands have any effect on obtaining a dissolution order from the court? We will answer these questions below.
So What Does the Law Provide?
Pursuant to Section 37(a) of the Land Law, which provides: “Every co-owner of jointly owned land is entitled at any time to demand the dissolution of the co-ownership,” that is: every co-owner of land has the right to demand dissolution at any time and without any special ground.
The rationale underlying this provision is that not only may co-ownership of land give rise to strife and quarrel, but dissolution of the co-ownership generally encourages the desirable trend of developing the land, whereas the continued fragmentation of ownership burdens its marketability and development.
If so, and in answer to the question of whether the real estate property can be sold without the partners’ consent, the answer is certainly affirmative. This answer, of course, relates to cases where there is no co-ownership agreement between the partners determining how the co-ownership of the property will be managed.
How Are Rights in Land Realized?
The Land Law lists several ways to dissolve co-ownership. Section 38(b) of the law provides that, in the absence of an agreement between the partners, the dissolution of the co-ownership will be by court order; but before the court issues such an order, it must examine whether the real estate property can be divided by “division in kind” under Section 39(a) of the law.
Note that not every real estate property can be divided in kind (each of the partners receiving a specific part), and for example, a single residential apartment cannot be divided in this way, with one party receiving the living room and the other the kitchen.
Division in kind relates mainly to cases where division is feasible (a residential building with several apartments, an undivided plot of land held in common (mushaa), and the like).
Returning to the example with which we opened, if one of the family members wishes to sell his share and realize his rights, and assuming the other family members refuse to cooperate with the sale, and where the property is a residential apartment that cannot be divided in kind, the only way to dissolve the co-ownership is by selling it to the highest bidder.
How Is the Process of Realizing the Rights Carried Out?
The realization of the rights will be through an application to the court in a claim for the dissolution of co-ownership in land. Furthermore, since this concerns members of a single family, subject-matter jurisdiction over the matter is vested in the Family Court.
On its face, this process appears quite simple, but the plot, as we now present it to you, can become somewhat more complicated when additional variables enter the equation, such as: Does the family reside in the home? Do minor children reside in the home? Is one of the rights holders in fact a protected tenant?
We will answer these questions in the next article in the series dealing with the dissolution of co-ownership in land.
The Amon Law Firm accompanies clients who wish to realize their rights in properties involving disputes, and assists by providing legal recommendations, especially in cases where there is a family relationship between the parties, in order to resolve the dispute amicably with the aim of avoiding unnecessary legal proceedings.
The above is general information only and does not constitute legal advice; each case is examined on its own merits.
