Mede-Eigendom en Onverdeeldheid (Joint and Undivided Ownership)
University of Leuven, Faculty of Law, Department of Private Law; Harvard Law School; University of Leuven, Faculty of Psychology; Tilburg Law School Department of Private Law and TISCO; Catholic University of Portugal (UCP) - Católica Global School of Law; University of Brussels (VUB/ULB) ; Greenille (Attorneys, Notaries and Tax Advisors; Brussels, Antwerp, Amsterdam, Rotterdam)
affiliation not provided to SSRN
February 14, 2011
THEMIS GOEDERENRECHT, pp. 47-70, V. Sagaert & A.-L. Verbeke, eds., Die Keure, 2011
In this article we discuss recent developments and issues in Belgian property law regarding joint and undivided ownership. We comment on the different sorts of undivided ownership with a focus on coincidental and conventional joint property.
As to the fist, we discuss the rights and obligations of co-owners on their undivided part. Here we comment on recent judgments of the Cour de Cassation such as the 2006 decision on the power to dispose of the undivided part in a single asset and in a totality of assets. Then we discuss the powers as to the undivided property itself, including rights of use and of disposal.
We then analyze several aspects of conventional undivided property, such as the clause of accrual and tontine.
An important focus of the article is on the methods to stop the situation of undivision, in particular the question who can claim the end of undivision and when. There is an important discussion whether the principle of article 815 Belgian CC - allowing each co-owner and each third party the claim to stop the undivision - does apply to conventional undivision. The traditional view is that it does not and that art. 815 is limited to coincidental undivided ownership. The modern view, based on arguments of creditor protection, says it does also apply to conventional joint property.
We argue that a distinction must be made between internal and external effect of joint property. We hold the view that parties may conventionally "close" the undivision because of a special destination of the undivision (such as marriage or an intimate relationship) thus forbidding the co-owners to claim division as long as the special destination continues. However, we claim that parties may only arrange this in their internal relationship but cannot hold this against third parties and creditors who always can claim the division according to art. 815 CC. The only exception (besides the conventional agreement of article 815, section 2) is an explicit legal rule prohibiting the creditors to claim such division. This is e.g. the case for civil partnerships and also in the community property in marital regimes of community property based on articles 1409-1426 CC.
The article concludes with some comments on the retroactive effect of the division and the annulment of division with reference to the important Cour de Cassation decision of 28 Jan. 2010.
Note: Downloadable document is in Dutch.
Number of Pages in PDF File: 13
Keywords: Property Law, Undivision, Joint Property, Clause of accrual, Internal and external effect, Retroactivity, Annulment
JEL Classification: K11, K12Accepted Paper Series
Date posted: April 18, 2011
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