Samejeoverenskomst: sameje om fast ejendom dækker over den situation, hvor to eller flere fysiske eller juridiske personer hver ejer en anpart af en ejendom. Ejes en ejendom af et aktieselskab, kan man sige, at ejendommen ejes indirekte af aktionærerne. I sådanne tilfælde er det imidlertid den juridiske person – det vil sige selskabet – der anses som ejer af ejendommen. Det er dermed selskabet, der er kompetent til at foretage eventuelle dispositioner over ejendommen.
Dissolution of a condominium
If the co-owners no longer wish to own real estate in co-ownership, the co-owners can agree to dissolve the co-ownership or individual co-owners can voluntarily dissolve themselves.
Det er dog ikke i alle situationer, at samejerne er enige i, at samejet skal ophøre. Hvis samejerne har reguleret deres indbyrdes retsstilling i en samejeoverenskomst, er det disse regler, der er gældende for samejets ophør.
Har samejerne derimod ikke på forhånd reguleret spørgsmålet om samejets ophør, er der ingen skrevne retsregler at falde tilbage på.
It follows from case law and legal literature that it is a clear starting point that any co-owner can demand dissolution of the co-ownership.
In this connection, the legal literature has stated that the question of whether a joint ownership can be dissolved must take into account the co-owners' preconditions for the joint ownership. For example, if there is either a unilateral or joint assumption that the co-owners should have a limited right to dissolve the joint ownership, and if this assumption is known to the co-owners, this may have an impact on the possibility of dissolution. However, it is a given that an implicit assumption in relation to the right to dissolve may give rise to evidentiary problems.
There will also be a consideration for the co-owner who wishes to withdraw from the co-ownership if the ideal share cannot be sold separately for a reasonable price or if a co-owner no longer has the financial ability to participate in the co-ownership. It creates a kind of unreasonable constraint if the withdrawing co-owner is not entitled to dissolution in such a situation.
Dissolution method and dissolution deadline
If nothing else has been agreed and the co-owners cannot agree, the co-ownership can be dissolved by voluntary public auction, which is generally held by the bailiff court.
However, the non-withdrawing co-owner must be given a reasonable notice period before a voluntary auction can be held. The length of the notice period is determined specifically according to the nature of the co-ownership, with particular emphasis on the duration of the co-ownership.
There are examples from case law where the notice period was 6 months.
The voluntary auction is generally held according to the rules for forced auctions, with the exception that the voluntary auction cannot be prevented.
The party requesting a voluntary auction will generally be required to prepare a draft of the auction terms that will apply to the voluntary auction.
Good inspiration can be found in the general foreclosure terms.
Cohabitation between unmarried cohabitants
There are no rules on how to dissolve a joint ownership agreement between unmarried cohabitants. It is particularly relevant for unmarried cohabitants to have a cohabitation agreement in place, especially in connection with the termination of cohabitation.
A co-ownership agreement typically regulates the co-owners' division of expenses, liability, dissolution, etc.
In the event of a dissolution, the co-ownership agreement ensures a clear procedure for the termination of the co-ownership, which can help prevent potential controversies.
However, if the unmarried cohabitants have not regulated their co-ownership by a co-ownership agreement, the starting point is still that each party is free to request dissolution of the co-ownership with an appropriate notice period and request the property to be sold at a voluntary public auction.
The dissolution of a joint ownership between spouses - unlike the dissolution of a joint ownership between unmarried cohabitants - must be done in accordance with marriage law.
However, a situation may also arise during a divorce where a property has to be sold at a voluntary public auction.
Concluding remarks
As a general rule, any party can terminate a co-ownership of real estate and demand the dissolution of the co-ownership by selling the property at a voluntary public auction.
Regardless of this, it will be beneficial for the co-owners to create a co-ownership agreement. By establishing clear guidelines for the co-ownership, including its termination, co-owners can avoid potential future conflicts and disagreements.
If you have any questions about dissolving real estate co-ownership or real estate in general, you are always welcome to contact CLEMENS' real estate experts.
