Dear Atty. Joji,
My father and three of his siblings are co-owners of a property left to them by their parents. He filed a case in court for the division or partition of the land. Eventually, the court rendered a judgment based on a compromise agreement signed by the co-owners. In this case, can my father sell his share without the consent of his siblings/ co-owners?
Louie
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Dear Louie,
Law and jurisprudence provide that if the alienation or the sale precedes the partition, the co-owner cannot sell a definite portion of the land without consent from his or her co-owners. He or she could only sell the undivided interest of the co-owned property. However, after partition, a definite portion of the property held in common is allocated to a specific co-owner. The co-ownership is dissolved and, in effect, each of the former co-owners is free to exercise autonomously the rights attached to his or her ownership over the definite portion of the land. It is crucial that the co-owners agree to which portion of the land goes to whom.
As summarized in Lopez v. Illustre, “[i]f he is the owner of an undivided half of a tract of land, he has a right to sell and convey an undivided half, but he has no right to divide the lot into two parts, and convey the whole of one part by metes and bounds.”
The undivided interest of a co-owner is also referred to as the “ideal or abstract quota” or “proportionate share.” On the other hand, the definite portion of the land refers to specific metes and bounds of a co-owned property.
To illustrate, if a 10-hectare property is owned equally by 10 co-owners, the undivided interest of a co-owner is one hectare. The definite portion of that interest is usually determined during judicial or extrajudicial partition. After partition, a definite portion of the property held in common is allocated to a specific co-owner. The co-ownership is dissolved and, in effect, each of the former co-owners is free to exercise autonomously the rights attached to his or her ownership over the definite portion of the land. It is crucial that the co-owners agree to which portion of the land goes to whom.
Hence, prior to partition, a sale of a definite portion of common property requires the consent of all co-owners because it operates to partition the land with respect to the co-owner selling his or her share. The co-owner or seller is already marking which portion should redound to his or her autonomous ownership upon future partition.
Hope this helps.
Atty. Joji Alonso