Boycott the sale of common goods?

If your marriage ends in divorce, you will also need to find an arrangement for your joint ownership. If you consider selling to be the best solution, your spouse must agree as co-owner. If you separate because of a dispute, your partner can boycott the sale of the joint property. You are then faced with the challenge of how to handle the situation. Let's talk about the options available.

Why is selling shared ownership the best option?

If the property is your marital home that you previously shared, you will need to come to an arrangement when you separate. This is how a spouse could Take over the co-ownership share of the other person against payment of severance payprovided, however, that he has sufficient capital or that his solvency is so good that the takeover can be financed.

If there is no interest in a trade-in, selling may be the best option. Just one Sell ​​on the open market ensures that you get the best possible sales product based on your expectations. You may need money to repay the mortgage you took out to finance the purchase price. If there is a surplus, the money can be divided. Especially if you separate, both partners may need additional cash. Since both spouses own the property, the sale requires the consent of both spouses.

An alternative could also be that you transfer the house to a third person as usual. to rent out, use the rent to maintain the capital or collect the surplus for themselves. Also in this case, both spouses must accept the rental. If one spouse boycotts the rental, the rental is not easily achievable. If you wanted to conclude the rental contract alone, the contract would be invalid if the partner did not agree. The tenant could have a problem because he would then move into the apartment of an owner with whom he has not signed a rental contract. As long as the rental corresponds to good management of the property, you may be able to take legal action to obtain permission for the rental (§ 745 BGB). The effectiveness of this approach seems questionable.

A very bad solution would be that Empty house let it go and wait for a solution to emerge. During periods of vacancy, you may find yourself with maintenance delays and, in the worst case scenario, the house will fall into disrepair. Regardless, you still have to maintain the home, such as paying property taxes and building insurance. As co-owners, each bears half of the maintenance costs. If a maintenance measure proves impossible to postpone (here the renovation of the roof), both spouses must contribute to the costs (Higher Regional Court of Brandenburg, decision of December 15, 2015, no. 9 UF 29/15).

Can one of the spouses sell the house alone if both are registered in the land register?

If both spouses are co-owners of the land register, neither of them can dispose of the property without the other. They depend on each other. If you want to sell the property, rent it or give it away, the partner must agree. Your separation and divorce do not change the ownership structure recorded in the land register.

What happens if one spouse refuses to sell the property?

If one of the spouses refuses to sell the property, the sale will not be possible. If you notarize a purchase agreement with a buyer for the purpose of selling, the purchase agreement would be invalid due to lack of spousal consent. If consent is not given, the purchase contract cannot be executed. You risk that the buyer, who is counting on your promise to sell and who may have already concluded a loan contract with his bank to finance the purchase price, will claim damages.

Can a co-owner be forced to sell?

As a co-owner, you cannot force your spouse to sell. If you wanted to take legal action to obtain his consent to sell the house, this would constitute an impermissible interference with his property rights. The path is different. The law provides for sharing auctions for this purpose.

If you are a co-owner of the property, you legally form a “community” (§§ 741 et seq. BGB). At the latest at the time of divorce, each partner can demand that this community be abolished and that the property be sold. If one partner opposes the sale, or even boycotts the sale, the other can request a divisional auction. The property is then sold at public auction at the local court. However, share auctions are a double-edged sword.

Good to know: What about inheritance law?

The same goes for communities of heirs. Here too, the consent of individual co-heirs cannot be forced. In order to separate the community of heirs, it is necessary to take the route of litigation. If a property is part of the estate, it must be sold at auction for division.

Are partition auctions possible before divorce?

Case law has different opinions on whether a pre-divorce partition auction is possible and can perhaps even be used as leverage in marital disputes.

The Hamburg Higher Regional Court (FamRZ 2017, 1829) ruled that property belonging to both spouses cannot be sold at auction for division during the period of separation and before divorce. The reason is that marriage The marital home remains the marital home even during the period of separation Everyone has the right to ensure that this situation does not change unilaterally. According to this, the partition auction would only be considered after the divorce at the earliest.

Other courts are of a contrary opinion. The Stuttgart Higher Regional Court (FamRZ 2021, 663) ruled that a partition auction is generally not excluded, even during the separation period. It is possible that the spouse is economically dependent on the proceeds of the auction. Only if the division auction is allowed can we avoid one partner feeling obliged to work towards the divorce as quickly as possible, while the other partner feels obliged to delay the divorce as long as possible. long possible. This is why many courts allow partition auctions during a spouse's separation. Balancing of interests in individual cases addicted.

The aim is to ensure that the spouse who refuses the partition auction has legal possibilities to prevent the partition auction, even in the context of a compulsory auction procedure. He may request the court to order the temporary interruption of the proceedings if the interruption is necessary to avoid a serious threat to the well-being of a common child (Article 180, paragraph III of the Compulsory Auction Law) . Termination is also considered if a spouse credibly demonstrates that a potential buyer is willing to pay a reasonable purchase price for the sale and it is likely that the previously boycotted spouse can still declare consent ( § 180, paragraph I ZVG). He can also request and have the apartment allocated for exclusive use by the family court (§ 1360b BGB).

Why is the partner boycotting the sale?

Before considering legal options, be clear about why the partner is boycotting the sale. Perhaps it is the parents' house that should remain in the possession of the family. Maybe your children grew up in the house and have many memories associated with the house. Or if the house was built mainly by their own means, some people's hearts bleed to have to say goodbye. You should at least respect these emotional sensitivities and, ideally, think together about how you want to manage the property. Be aware that sheet music auctioning is not really a good option.

The spouse should also know that a boycott is not a long-term solution. If you bought the property together and financed the purchase price, you probably also signed the loan contract with the bank together. The partner is then also responsible to the bank for servicing the debt.

If your property is financed, your partner also risks debt service taking a hit and the bank, as lender, potentially foreclosing on the property. In the event of foreclosure auctions, significant losses in value can always be expected.

Why are partition auctions not a good option?

If a property is forced to auction, experience has shown that as an owner you always have to accept considerable losses. The starting point is that the experts commissioned by the local court to produce a valuation report generally set the market values ​​of real estate at a lower level than would be possible if they were sold freely. If the property is sold at auction for this value, you will lose money.

Or if there aren't enough interested parties at the auction dates based on the market value, you risk your property being auctioned below the value limits for much less than you would have. could have obtained if it had been sold privately. .

You should also know that a house is always sold at auction as a whole. It is therefore not possible for only a partner's co-ownership share to be auctioned. Anyway, you have the option on the auction date act as a bidder yourself and auction off the property as a whole. This option may make economic sense in some cases, but it requires that you be prepared to undertake this long journey and the effort associated with it.

What about the gain when selling a house before a divorce?

Selling your home before divorce can affect your profits. What matters most is the deadline. If the marriage ends in divorce, you are entitled to compensation of earnings. To calculate the amount of the compensation claim, the reference date is the date on which your divorce request was served on your spouse by the family court. This is the day when the case is pending (§ 1384 BGB).

For example, if you brought building land or your own money into the marriage, these contributions can be taken into account in the equalization of earnings. The amounts are added to your initial assets. Regarding the final assets in the event of divorce, the initial assets determine the gain that you both made within the framework of the marriage. You are entitled to half of this earnings if your earnings are lower than those of your spouse. Ideally, you should determine the gain by mutual agreement in a divorce settlement agreement.

In all

If the sale of your property is on hold due to separation, you may find yourself in a difficult situation. However, your prospects are good as the partner must also have an economic interest in an agreement being reached regarding the real estate. It is best to discuss with your lawyer the strategy you can use to sell your property. Despite all this, always have hope. There is always a way.

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