Does a single heir have the right to force the sale of the property at auction? The Civil Transactions Law settled this type of dispute with an explicit provision balancing the interest of the party seeking partition against the remaining co-owners, in Article 628 of the Civil Transactions Law.
First: The substance of the legal rule
Paragraph 2 of Article 628 provides that a co-owner's request to sell the property is not binding on the other co-owners if it is possible to enable the party seeking partition to obtain a fair value for their share without resorting to selling the entire property. The decisive factor is not the mere wish of a co-owner to sell, but whether harm is established or not.
Second: Prohibiting forced sale to protect the other co-owners
The Law affirmed that co-owners are not compelled to sell at auction so long as the party seeking partition can sell their share for a value not less than what it would fetch were the whole property sold. This provision prevents auction sale from becoming a means of pressure on the other co-owners, and makes the sale an exceptional measure resorted to only when other solutions are impossible.
Third: The co-owners' right to avoid the sale
The Law granted the remaining co-owners an important right: to avoid the sale by compensating the party seeking partition for any shortfall that may affect the value of their share if sold separately. The Law thereby ensures:
- No harm befalls the party seeking partition.
- The interest of the remaining co-owners in retaining ownership of the property is not wasted.
Fourth: The practical effect of the provision
Applying this paragraph entails that:
- A request to sell the property is not accepted automatically; the court is bound to verify the possibility of compensating the party seeking partition.
- The property is not put up for sale or referred for liquidation except after compensation proves impossible — where the value of the share sold separately is less than if sold as part of the whole.
Conclusion
Paragraph 2 of Article 628 of the Civil Transactions Law is among the most important provisions regulating the partition of co-owned real estate, for the justice and balance it achieves between co-owners, and for the safeguards it contains against the abusive use of the right to seek partition or resorting to forced sale without justification.