We speak of co-ownership when several persons have a right of co-ownership in an undivided property (co-owners), provided that the share of each of them is determined in proportion to the whole (ideal share). If the co-ownership shares are not determined, they are presumed to be equal (Article 65 of the Civil Procedure Code – CPC).

According to Article 69 of the CPC, a co-owner always has the right to request the partition of the property, except at an inappropriate time. A transaction by which a co-owner waives the right to partition for an extended period of time is null and void. If a co-owner waives the right to request the partition for a certain period of time, his successors in title are also bound by the waiver. The case law shows when the time is inappropriate. Thus, it is clear from the decision of the Ljubljana High Court of Justice No. I Cp 217/2019 of 17 April 2019 that the notion of “inadequate time” is a legal standard which the court must apply on a case-by-case basis, taking into account the circumstances of the individual case, and that the court’s correct starting point, based on case law, is that the circumstances of the case are either objective or subjective, with the essential characteristic of such circumstances being that they are of a transitory nature, with a foreseeable cessation of the circumstances in question in the course of a given period of time. Furthermore, we would like to point out the decision of the High Court of Ljubljana, Opr. No. I Cp 1096/2022 of 22 September 2022, from which it follows that the court determines whether the time is inappropriate for the partition of the co-ownership, after assessing the circumstances of the particular case, as alleged by the participants.

There are two ways to partition co-ownership: by agreement or by court. An amicable partition occurs when the co-owners determine by agreement the manner in which the property is to be partitioned (Art.70(1) of the CPC). In this case, the co-owners conclude a contract on the partition of the co-ownership, in which they determine how they will divide the co-ownership. However, where no agreement between the co-owners is possible, the court decides on the manner of partitioning the co-ownership in an irregular procedure, so that the co-owners receive in kind the part of the property in which they show a legitimate interest (Art.70(2) of the CPC). If one of the co-owners shows a stronger interest in not partitioning the property for a certain period of time than the interest of the co-owner proposing the partition, the court may postpone the partition for a maximum of three years (Art.70(3) CPC).

The judicial partition of co-ownership is initiated on the application of any co-owner. Article 156 of the Code of Civil Procedure (CCP-1) provides that the proposal for partition must contain a description of the property to be partitioned, information on the co-owners and the size of their shares, and information on the holders of the rights in rem in the property. If the property to be partitioned is immovable property, the land registry data must also be provided, or documents proving ownership of the immovable property must be submitted if the immovable property is not registered in the land registry.

In the case of judicial partition, the court primarily seeks a physical partition of the property in kind. If the physical partition of the thing in kind is not possible, even by payment of the difference in value, or is possible only if the value of the thing is significantly reduced, a civil partition is carried out, namely the court decides to sell the thing and divide the purchase price (Art.70(4) CPC). The court may, on the application of a co-owner, decide that, instead of selling the property, the property belongs to him or her in its entirety, provided that he or she compensates the other co-owners by paying them a pro rata share of the sale price fixed by the court. If several co-owners so request, priority is given to the co-owner determined by the court, taking into account the size of the ideal shares, the previous use of the property and the needs of the co-owners (Art.70(4) CPC). The above is also confirmed by case law, namely the decision of the High Court of Ljubljana, Opr. No. I Cp 936/2019 of 7 November 2019, from which it is clear that the courts are strictly bound by the transcribed order and the method of partition in their decision-making. It follows from the case-law cited that, since the co-owners are in the same position, having regard to their legitimate interests in taking possession of the co-ownership, partition under Article 70(5) of the CPC is not possible, since the essential purpose of the partition procedure is the dissolution of the community of property. In such a case, the court must decide, in accordance with the prescribed exclusionary order of the methods of partition of the jointly owned property, to carry out a civil partition, i.e. to sell the immovable property (either at public auction or in execution proceedings) and to divide the purchase price between the two parties in proportion to their respective ideal shares.