The ruling of the Full Bench of the Supreme Court No. 67/2026, of 26 January, examines an interesting procedural question: the standing to bring an action for the division of co-owned property where one of the shares belongs to a dormant estate.
This is a scenario that arises in practice in certain family disputes concerning jointly owned real property where different acquisition titles are involved.
In the case under examination, the claimants held, by way of gift, an undivided half share in a building. The remaining 50% belonged to a pending estate, represented in the proceedings by its known living heirs. At first instance, the claim was upheld and the division of the property by public auction was ordered.
However, the Provincial Court of Appeal overturned the judgment on the grounds that the claimants’ standing had not been established, given the existence of a pending succession yet to be distributed, and the fact that one of the claimants had additionally received a legacy from one of the deceased’s heirs consisting of an undivided one-eighth share of the disputed property.
The supreme court overturns this approach.
The Court recalls that Article 400 of the Civil Code grants any co-owner the right to demand, at any time, the division of the jointly owned property, and that no one may be compelled to remain in co-ownership against their will. The right to seek division is an inherent faculty of the condition of co-owner.
In the case under analysis, it was undisputed that the claimants held, by way of gift, an undivided half share in the property. That circumstance was sufficient to establish their status as co-owners and, accordingly, their standing to bring the claim. The fact that the other half formed part of an estate pending acceptance and distribution could not neutralise that right.
Thus, according to the Supreme Court, the succession situation affecting the deceased’s share neither conditions nor precludes the viability of the division action. The eventual determination of inheritance rights may be resolved in accordance with the rules of succession law, but does not block the exercise of the right recognised under Article 400 of the Civil Code.
The ruling also recalls that a pending estate is an entity with procedural capacity to be sued, given the transitional nature of the ownership of the deceased’s estate.
The judgment quashes the appellate ruling and upholds the decision handed down at first instance, affirming that where a clearly defined ordinary co-ownership exists in respect of one share, the right to seek division cannot be paralysed by the pendency of a succession in relation to the remaining share.
In sum, the Supreme Court reinforces a doctrine consistent with the very nature of co-ownership: no one is obliged to remain in co-ownership merely on account of the inactivity or lack of succession resolution on the part of another co-owner.