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How to make partition of real property and movable property?



Definition of co-ownership 

We refer to ownership of a particular thing when two or more persons are entitled to a part of the right of ownership provided that the ownership for each of them is expressed in an ideal share as generally expressed in a fraction (for example, AB person as a co-owner of a house has shares of 1/5).

A definition of co-ownership is prescribed by Art. 25 of the Law on Property Rights of FBiH:  

1)  Co-ownership shall exist when two or more persons have the ownership right over the same thing, each according to their share proportional to the whole (ideal share). 
2)  If co-ownership shares have not been determined, they are deemed to be equal.  

Partition of movable and immovable property  

If several persons have the right of ownership of a particular thing, each co-owner is entitled to demand partition of the thing owned in common. 

If there is a consent among co-owners, it could be dissolved by an agreement in the form of a contract. However, if the consent does not exist, one of the co-owners is entitled to request a competent court to conduct a partition. The procedure for partition of property is carried out according to the extrajudicial procedure. It means that the co-owner wishing the partition, need to file a motion with the court in which all co-owners are included. The motion shall contain information on the following: the subject matter of partition, the size of share and any other property right of every co-owner. In case of immovable property, the land registry or cadastral information should be specified and the respective written evidence of joint ownership, a servitude and any other real rights as well as the evidence of possession of immovable property should be enclosed. The motion shall be filed with the court in the jurisdiction of which the thing or the immovable property is located, and where the thing or immovable property in joint ownership is located on the territory of several courts, each court on whose territory such property is located shall be competent. 

Method of partition

Co-ownership of a thing shall be terminated either by physical division (if possible) or by an act of termination by way of sale. In case of real property, the partition is generally made by land parcelling (division into multiple small parcels) and each co-owner shall obtain a new parcel pro rata to his/her co-ownership share. In case of residential building, the partition shall be made by  dividing condominium units, or the division of building into several separate building units. 

GOOD TO KNOW > If the partition of a physically indivisible thing is carried out (e.g., a ship), an action for termination, by way of sale, of co-ownership (civilna dioba) shall be executed meaning that the thing will be sold and the proceeds of such sale shall be distributed pro rata to the co-ownership shares.    
If, however, the sale fails, the co-ownership can be terminated in a way that one co-owner shall be given by the court the thing in question taking into consideration the size of their co-ownership shares, their needs and other circumstances and the court shall commit that co-owner to pay all other co-owners the market value of their shares.   

Bringing a decision on partition 

By the decision on partition the court shall decide on the method of servitude realisation and any other property rights on shares of the thing being physically divided among co-owners. 

*The article is merely informative in nature for the purpose of understanding the particular legal matter. Content is not allowed to be taken unless explicitly authorised by the Ljubić Law Firm.  

Co-ownership of a thing shall be terminated either by physical division (if possible) or by an act of termination by way of sale.

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