going-the-extra-mile-300x60
  • flag-en
  • flag-ro
  • flag-bg

The court partition and why it should not be reached

Petar Kulesnski
Petar Kulesnski

The process can take years and the costs can approach and even surpass the value of your property’s share

The court partition is one of the most common and at the same time one of the most deprecated methods for regulating property disputes between heirs and owners. The most commonly used application is if you have inherited one or more properties together with your close and distant relatives and you cannot reach a consensus with them for the future allocation of the resulting benefits and obligations. For example, the inheritor may want to occupy part of the jointly owned house, another – to repair and lease it, third – to sell it. In such a situation, you have to think carefully and you better consult a lawyer before you turn to the court in connection with the court partition of properties.

The court partition is also a possible method for termination of co-ownership between former spouses, for example about properties, acquired during the marriage, for which there was a regime of matrimonial property. However, in most cases, the property relations between the spouses shall be regulated in the very proceedings of the divorce, including the ownership of the family home and its use, but only if the divorce is on mutual consent, and not by claim procedure. Therefore, this hypothesis of court partition will not be examined in this article.

Usually, the court partition proceedings are reached because of stained personal relations between co-heirs. Often, sometimes even stubborn and leaded by personal motives, the parties do not take the best economically decisions for themselves. Our advice in such cases is to show understanding, to consult with a specialist in this area and to try in every way to arrange your relations out of the court through carrying out voluntary partition and equalization of shares with money. Even if a court partition is commenced, an agreement can be concluded at any time, which to be approved by the court. Be sure that the court will not resist, but will stimulate such behavior, because it will lead to the end of the legal proceedings. Otherwise, no one will return your time, nerves, ruined personal relationships with your relatives and not least – the wasted money.

Cases that can last years

The court partition is one of the most complicated proceedings, which the Bulgarian Code of Civil Procedure knows. If you are involved in such a process, load yourself with patience. The cases often last 3, 4 or 5 years, as they can linger also for more than a decade of the filing of the statement of claim in the court.

Each heir may initiate partition proceedings of co-owned properties. A necessary condition for the validity of the court partition is the participation of all heirs in the proceedings. The procedural law is clear what kind of applications should be accompanying the statement of claim, namely the certificate of death of the grantor, certificate of inheritances, deed and cadastral drawings (if available) of the properties, property tax assessment etc.

Costs, which are not negligible

The costs on the cases, related to the sharing of co-owned properties, are not small. The state fee for initiating the case is always bound to the value of the properties, for which the partition is requested. Its value is firm – 4%, calculated on a quarter of the taxable value of the partitioned properties. It is divided proportionally according to the shares of each of the co-partitioners. However, the costs do not stop there. The costs for the appointed court expertises follow, as well as the costs for carrying out the public sale of the properties, if it comes to this. The above mentioned costs do not include those for attorneys’ fees, travels, appearances at court hearings etc., as at one moment after years it can appear that you have wasted almost as much money and even more as the actual value of your shares of the inherited properties.

Process in phases

The court partition is biphasic proceedings. Competent to hear the case is the regional court at the location of the property, claimed for sharing. The first phase begins with the constitution of all participants in the process, as often an obstacle in time is the regular summoning of all the co-heirs. The practice shows that this leads to repeatable postponing of the proceeding of the case. This phase ends with a court decision, in which the panel of judges rules on who are the individuals, who will participate in the performance of the partition, which are the properties, which will be partitioned, and what is the proportion of each of the co-partitioners. At the request of any party the court has to rule also on which properties of which inheritances will be used until the final performance of the partition, as well as which amounts will pay some of them to the others for their use. In this phase, at the request of the parties, any other issues can be considered, regarding the clear determination of the aforementioned circumstances, such as disputes over origin and adoptions, wills, real estate transactions, subject to the partition, the authenticity of the documentary evidences, etc. The decision of the first instance court is subject to appeal by either party before the respective district court and the decision of the district court in turn is subject to appeal before the Supreme Court of Cassation only if there are grounds for a cassation appeal.

Only after the admission decision for the partition enters into force, the second phase begins – the performance of the court partition. In the first court session after the admission of the partition, each of the co-partitioners can claim costs that are done, caring for and maintaining the property of the hotchpot. If they do not do that until its end, they lose their right to state such a claim in these proceedings. A mandatory step in the second phase of the court partition is the appointment of a forensic technical expertise with a basic question “are the properties divisible”. Or, with other words, can there be for separated an individual property for each of the co-heirs of the partition property, corresponding to their own ideal part, without violating the provisions of the Inheritance Act, Ownership Act, Spatial Development Act and other laws and secondary legislative acts.

Not everything can be divided

Which properties are indivisible? The regulated landed properties are indivisible, when they cannot be divided according to the Spatial Development Act, subject to quotas, determined by the court. As for the agricultural and other lands that are not regulated, art.72 of the Inheritance Act states that “at compiling of the portions the splitting of the fields into parts smaller than 3 decares, of the meadows into parts, smaller than 2 decares and of the vineyards and the orchards into parts, smaller than 1 decare, shall not be admitted”.

In these cases the court exports the property at a public auction. At the public auction all inheritances can bid, but in this case they are required to buy the property at a price not lower than the highest offered price of the sale. In other words, the public auction must be avoided in all cases, because it is inappropriate and its conducting makes the costs of acquisition the property more expensive.

If for your “joy” the properties appear to be divisible, the court based on the expert’s conclusion drafts a partition protocol, indicating the individual shares, as the smaller shares are equated with money. The parties can file their objections, after which the court shall prepare the final partition protocol. The decision by which the court declares the final partition protocol is subject to appeal by either party and after its entry into force, the court summons the parties to the drawing lots. By the order of the drawing of lots each party chooses one of the determined shares. Under the provisions of the Code of Civil Procedure (CCP), concerning the conduct of the court partitions, the court can execute out the partition also without drawing lots, when the constitution of shares and the drawing of lots proves to be impossible or very inconvenient.

The article has been published in Bulgarian, in Capital Daily.