Partition lawsuits are lawsuits filed by individuals who have co-ownership rights over a property to convert their shares in that co-ownership into individual ownership by separating them from other co-owners. Partition lawsuits are typically filed with the aim of terminating the co-ownership in immovable properties that co-owners jointly own.
These lawsuits are more commonly known among the public as cases opened by heirs who have co-ownership in the inherited assets of the deceased, after the death of the testator, in order to “share” the inheritance (actually, to facilitate the sharing of assets in the estate).
Co-ownership of a property can be either joint ownership or co-ownership with defined shares.
JOINT OWNERSHIP In joint ownership, each co-owner has a specific share in the property, and these shares or interests are determinable. An example of joint ownership is when multiple shareholders own a property together, such as a plot of land.
CO-OWNERSHIP WITH DEFINED SHARES In co-ownership with defined shares, the co-owners do not have divisible shares in the property; instead, they collectively have control over the entire property as a whole. An example of co-ownership with defined shares is when heirs have a proportional ownership in the inherited assets from the deceased. The heirs have a share in the assets inherited from the deceased, but it is not determinable.
WAYS TO TERMINATE CO-OWNERSHIP IN A PARTITION LAWSUIT There are two ways to achieve the goal of partition through a partition lawsuit. The first is to terminate the co-ownership by dividing the subject property through partition, and the second is to terminate the co-ownership through sale.
Terminating co-ownership through partition: This involves dividing the jointly owned property or properties in a divisible manner and distributing the portions equally among the co-owners. If there are variations in the value of the divided properties, the differences are adjusted among the co-owners. Terminating co-ownership through sale: This involves converting the jointly owned property or properties into personal ownership by selling all the assets belonging to the co-ownership and distributing the proceeds among the co-owners in proportion to their shares. In this case, the sale can only be conducted among the co-owners if all of them consent.
In the mentioned ways to terminate co-ownership, it is generally preferred to first attempt division and distribution of the assets, and if that is not feasible, then the sale of the co-owned assets is sought. In a partition lawsuit, if the request is to terminate the co-ownership by division, the court can decide to terminate the co-ownership through sale based on the specific circumstances of the case. However, if the request is for termination through sale, the court cannot decide on termination through division.
CLAIMS REGARDING IMPROVEMENTS Improvements refer to structures and plants permanently attached to immovable property. The claim of improvements aims to determine the ownership of structures and plants integrated with immovable property that is not owned by the claimant. In a partition lawsuit, a claim regarding improvements can be raised. If there is a dispute regarding the ownership of a structure or plant on a property owned in common, it is necessary to resolve this dispute through the determination of ownership of the improvements. Therefore, if you have a structure or plant on one of the properties owned in common in a partition lawsuit, and if another co-owner claims ownership of the structure or plant that belongs to you, you need to file a separate lawsuit to determine the ownership of improvements. The outcome of the lawsuit determining the ownership of improvements is awaited in the partition lawsuit.
RIGHT OF FIRST REFUSAL FOR STAKEHOLDERS In the case of co-ownership of an immovable property, if one of the stakeholders sells their share to a third party, the other stakeholders can claim a right of first refusal on the property sold to the third party. If the right of first refusal is exercised, the other stakeholders can acquire the sold share of the co-owned property by accepting the conditions of the sale with the third party.
IN WHAT CASES CAN WE NOT FILE A DISSOLUTION SUIT FOR CO-OWNERSHIP? If the stakeholders of co-ownership have already entered into a distribution agreement among themselves and there is no justifiable reason within the scope of legal provisions, a dissolution suit for co-ownership cannot be filed. The distribution agreement in question can be made for a maximum period of 10 years. Dissolution of co-ownership cannot be requested at an inappropriate time within the normal course of life. If the co-owned property is permanently dedicated to a specific purpose, a dissolution suit for co-ownership cannot be filed. GENERAL INFORMATION ABOUT THE DISSOLUTION OF CO-OWNERSHIP LAWSUIT This lawsuit can be filed if even one of the partners demands the dissolution of co-ownership. Even if the majority of partners have waived the dissolution suit, it is sufficient for the continuation of the lawsuit that a single partner who wishes to proceed with the lawsuit. All partners must be included in the dissolution suit. If one of the partners has passed away, all the heirs must be included in the lawsuit. There is no specific time limit for filing a dissolution suit for co-ownership; it can be filed as long as the co-ownership exists. In cases where the dissolution of co-ownership for an immovable property is requested, the dissolution of co-ownership can be requested for the entire property. It is not possible to request the dissolution of co-ownership for specific shares or a part of the property. A dissolution suit for co-ownership cannot be filed for immovable properties without a title deed registration. DETERMINING THE COMPETENT COURT In lawsuits regarding the dissolution of co-ownership, the competent court is the peace courts.
There are various possibilities regarding where the lawsuit should be filed, depending on the location, as follows:
If the immovable property where the dissolution of co-ownership is requested is located, the court in the jurisdiction of that property is competent. If there are multiple immovable properties, the court in the jurisdiction of any of them is competent. If the movable property where the dissolution of co-ownership is requested is not inherited property, the court in the jurisdiction where the possessing partner is located is competent. If the movable or immovable properties where the dissolution of co-ownership is requested are inherited properties, the court in the jurisdiction of the deceased’s last place of residence is competent to hear the case.
Our office, located in the İzmit district of Kocaeli province, provides consultancy and litigation services in the field of terminating co-ownership, as well as other legal cases, with experienced and specialized legal attorneys.