The sale of a property can become a problem when there are multiple owners and only one person wants to sell the property. This is common in cases of divorce or inheritance, leading to many empty and abandoned homes in Portugal. This is where the legal regime of co-ownership comes in, which requires agreement among all owners for the sale to proceed. We explain everything in this article prepared by Idealista/News, with legal grounds.
To understand what is at stake, it is important to first understand what co-ownership of property means, which is regulated in Articles 1403 and onwards of the Civil Code: it is defined as a situation in which “two or more people are simultaneously holders of the right of ownership over the same thing.” Therefore, if a couple buys a house, they become co-owners or consorts of the property, meaning their ownership is equal both qualitatively and quantitatively, unless there is an agreement or legal provision to the contrary.
“This implies that the existing rights are of an equivalent nature, and that the percentage of capital held over the property is the same, unless otherwise indicated, either in the title of ownership or in a special agreement on the regulation of that co-ownership formally established between the consorts,” explains Carla Leandro, consultant at Sérvulo & Associados, to Idealista/News. Therefore, “the co-existence of consorts in co-ownership means that their rights must be exercised jointly (as if they were a single individual owner), and that all participate in the benefits and burdens of the property in question,” she adds.
This co-ownership regime is particularly important when there is an intention to sell or rent a property (and even in cases of property exchanges), as it requires the involvement of all property owners. Typically, these situations become problematic when the property is owned by a couple who separates or by multiple heirs. “While it is true that, on the one hand, no owner can be forced to remain in ownership of a property if they no longer wish to do so, it is also true that the transferability of property is not as free as it would be for a singular property,” the expert clarifies.
Sale of Inherited Property
If an apartment was purchased by a couple in a community of acquired property, it means that the property is common. In this case, the sale of the house “necessarily implies that both spouses carry out the transfer or consent to the sale (through an authentic or certified document),” states the consultant at Sérvulo & Associados. This holds true even if the marriage has already been dissolved by divorce, provided the property has not been divided in a financial agreement.
Similarly, “in an undivided inheritance or cases where the property has not been divided among the heirs, all heirs must be involved or give consent, through an authentic or certified document, for the transfer of the property. The intervention of the head of the estate is not sufficient,” clarifies Carla Leandro.
This also involves the right of first refusal. In cases of co-ownership, the share held in the property is ideal and unspecified (and cannot be determined unless the property is divided). While the law allows for the free transfer of this unspecified share, the legal system considers that this transfer is subject to the prior exercise of the right of first refusal by the other co-owners. In other words, it ensures that “the current co-owners (…) have the privilege to purchase that share over others,” the consultant further explains.
Regarding property rental, the law is clear: “The rental of an undivided property made by the consort or consorts acting as administrators is only valid when the other co-owners give their consent, in writing, either before or after the contract,” adds the consultant from Sérvulo.
IN: idealista.pt
