When is condominium apportionment necessary?
If a house or a building, residential or business facility or other real estate consists of several residential or business units, in addition to entry of the building in the cadastre and land registry, we recommend the implementation of the condominium apportionment procedure, which will divide the entire building into several separate units. The purpose of the preparation and implementation of the condominium apportionment study, i.e. the plan of special parts, is to divide the joint ownership into separate independent use units. When the apportionment is conducted, every co-owner can dispose of their separate part independently.
What is the condominium apportionment procedure?
The condominium apportionment study is prepared by a court expert in the field of construction or certified designers. The apportionment study is submitted to the regional Office for spatial planning, which issues a certificate of independent use units.
In addition to the above, it is necessary to put together a contract on dissolution of co-ownership association or manifestation of the will of (co)owners. In the end, the study, certificate from the regional Office for spatial planning and the contract on dissolution or manifestation of the will of (co)owners shall be submitted, together with the request, to the land registry department of the competent court for implementation. After that, and in accordance with the title deed for all residential and business units, condominium apportionment shall be carried out in the cadastre. Only then is the procedure fully completed.
What can be apportioned?
Condominium apportionment can be performed on all buildings with 2 and more apartments and office units, as well as on large buildings with hundreds of apartments and business premises.
Condominium apportionment can be performed on:
- apartments
- business premises
- parking spaces
- garages
- parts belonging to these special units such as balconies, terraces, basements and attics, home gardens, etc.
What happens when there is no consent of all co-owners for condominium apportionment?
The Act on Ownership and Other Real Rights provides for the option of dissolution of co-ownership association of the real estate by establishing ownership over a separate part of the real estate, i.e. condominium. The basis and legal grounds for establishing condominium is the written consent of all co-owners of the real estate. In addition, a confirmation from the competent authority is required that a certain apartment or other room in a certain building and on a certain plot of land is an independent usable unit, and it is necessary for the court to determine the usable area of the apartment or other premises, in order to determine whether it is an appropriate co-ownership share.
Therefore, the Law prescribes that the establishment of ownership of a separate part requires the consent of all co-owners, and that an individual co-owner can deny it only if the requested establishment of condominium would limit or exclude the rights that already belong to him on the basis of his previously established ownership of that separate part.
Earlier, in the absence of consent of all co-owners, the courts refused to accept the dissolution by establishing condominium as a valid way to dissolve the co-ownership association. However, the Supreme Court of the Republic of Croatia stated in their decision Rev-1553/13-2 of 8 January 2014 that the establishment of condominium in court proceedings is possible without the consent of one of the co-owners and that this is precisely the purpose of legal provisions on judicial dissolution.
Therefore, a co-owner may deny consent to establishment of condominium only if such establishment of condominium would limit or exclude the rights that already belong to him on the basis of his previously established ownership of that separate part.
If the court finds that the establishment of condominium is not to the detriment of the co-owner who opposes the dissolution and that all other preconditions for dissolution are met, there is no obstacle to preventing the co-owner seeking the dissolution from requesting the same by establishing condominium, because the purpose of provisions on judicial dissolution is to apply it when there is no agreement between co-owners on the dissolution.
Judicial dissolution by establishing condominium is carried out according to the rules of extra-judicial proceedings, if there is no dispute between the parties on the subject of dissolution, the right of co-ownership of the subject of dissolution and co-ownership shares.
If there is a dispute on the above issues, the above shall be resolved in civil proceedings.
Who initiates the proceedings
– co-owner with corresponding co-ownership share
– joint owners with corresponding co-ownership share
– co-owners whose co-ownership shares combined are the same as the corresponding co-ownership share.
What the court has to determine before making a decision
When there is no consent of all co-owners, the court determines whether the co-ownership share of the person proposing the dissolution is appropriate in terms of the provisions of the Law on Property and Other Real Rights and presents evidence by expertise.
The next step is the preparation of a study of condominium apportionment, i.e. a plan for establishing ownership of separate parts of the real estate. In the study, the expert lists and describes the future separate parts of the building, their usable areas, determines the share of usable areas in ideal parts of the property and determines the usable areas of future separate parts.
The mentioned study is confirmed by the competent authority which determines the fact that separate parts of the property, as described and listed in the study of condominium apportionment are independent usable units and that the entire building in question is legally built.
The court should decide on the objection of the co-owner who opposes the dissolution, i.e. they should determine the reasons for the opposition, as well as whether those reasons are well-founded.
The court shall reach a decision based on the conducted procedure and evidence.
The purpose of the described procedure for judicial dissolution of co-ownership is to allow for dissolution when consent of all co-owners is lacking.
When do we need services of a lawyer as an expert in implementation of condominium apportionment
The services of a professional may be required in all phases of the implementation of condominium apportionment, from the initial determination and harmonization of land registry and cadastral status of real estate registration, preparation of the condominium apportionment agreement or the dissolution of the co-ownership association or manifestations of the will of the co-owners, obtaining a certificate from the regional Office for spatial planning, representation in the procedure for judicial dissolution by establishing condominium to the final implementation of registration of condominium in the land register and cadastre.
Attorney at Law, Petrić & Kajić Law Firm LLC, info@petric-kajic.hr www.petric-kajic.hr