Dividing is not parcelling out the co-ownership: a judgment on the limits of condominium (“propiedad horizontal”) as a way of dividing jointly owned property
No one is obliged to remain in a co-ownership. That is the starting point of Article 552-10 of the “Código Civil de Cataluña”, the Catalan Civil Code, and the raison d'être of the action for division. From that follows something that seems obvious but is often disputed in practice, a division that leaves the co-owners sharing the resulting properties all over again does not fulfil the purpose of the action. The judgment obtained by this Barcelona law firm confirms this and declares the property physically and legally indivisible, over the opposition of the majority co-owner, who was seeking precisely that.
1.A whole building, five co-owners and unequal shares
The jointly owned property was a mid-terrace building in a small town in the province of Barcelona. A ground floor with commercial premises, a first floor with a storeroom linked to the premises by a goods lift connecting the two, and two upper floors intended for residential use. Some three hundred and seventy square metres of built floor area spread over four floors of practically identical size. The building was unoccupied and unused.
There were five co-owners, with very unequal shares. One co-owner with fifty per cent, who had acquired his undivided half by purchase in the eighties, and four co-owners with twelve point five per cent each, who had received their shares by inheritance in 2011. Our client was one of those four.
It is worth doing a very simple piece of arithmetic right away, because it explains the entire lawsuit. To allocate to each co-owner a part corresponding to their share, eight units of equivalent value would be needed, four for the fifty per cent holder and one for each of the others. The building has four floors.
2.Eight years trying to get out
The history before the lawsuit is that of a deadlocked co-ownership that had tried almost everything. In January 2016 the five signed a contract entrusting the sale of the building to a property professional. The agreement empowered the majority co-owner to engage a professional of his choice and, in parallel, the four minority co-owners to engage another one jointly. For as long as the contract remained in force, all of them undertook not to demand division.
That contract came to an end on 31 December 2019, by decision of the majority co-owner, who in November of that year gave notice of his refusal to renew it. Since then, five years of negotiations without result.
3.The formal demand that precipitated everything
In July 2024, the majority co-owner served a formal demand on the others to execute a public deed of declaration of new construction (“declaración de obra nueva”) and division under the condominium regime (“propiedad horizontal”). At first sight it might look like a way out. It was not, and it is worth understanding why, because it is the crux of the matter.
The formal demand proposed setting up the condominium regime, but it did not propose allocating the resulting privately owned units in proportion to each co-owner's rights in the co-ownership. In other words, three or four new registered units would be created, and the five co-owners would go on being co-owners of all of them in the same proportions as before.
For our client, the effect was not to get out of the co-ownership but to multiply it. She would go from holding twelve point five per cent of one property to holding twelve point five per cent of each of the resulting units. Where there had been one unwanted co-ownership there would be three or four. Instead of being solved, the problem was being split up.
It is worth pausing on why the majority co-owner chose that route and not another. Article 552-11.4 of the “Código Civil de Cataluña”, the Catalan Civil Code, allows a co-owner holding at least eighty per cent of the shares to demand that the jointly owned property be allocated to him, paying the others in cash the expert-appraised value of their shares. It is the natural route for whoever wants to keep the whole building. But he had fifty per cent, a long way from that threshold, so that door was closed. Condominium without proportional allocation was, in practice, the only way of keeping control of the building without buying out the others' shares or being forced into a sale.
In the face of that, in 2024 a claim for division of jointly owned property was brought, which was processed as a “juicio verbal”, the simplified oral procedure, with the value of the claim set at the expert-appraised value of our client's share.
4.Our position
The claim was built on three ideas.
First, the purpose of the action is to bring the co-ownership to an end, not to reorganise it. Article 552-10 of the Catalan Civil Code recognises that any co-owner may demand, at any time and without giving reasons, the division of the jointly owned property. Behind that rule lies an old principle that the “Tribunal Supremo”, Spain's Supreme Court, has repeatedly recalled, no one can be forced to remain in a state of co-ownership, because co-ownership is a transitional state on which the legal system looks with disfavour. A division that returns the same co-owners to a state of co-ownership over the resulting properties does not fulfil that purpose. Formally it divides a property; in substance it preserves the problem and reproduces it as many times as units are created.
Second, the property was indivisible having regard to the physical reality and to the shares. It is not enough that there are floors capable of being turned into independent units. It must be possible to distribute them in accordance with each co-owner's percentage, and here that was arithmetically impossible. Four floors against shares of fifty and twelve point five per cent. Any distribution would have forced several of the co-owners to go on sharing units, that is, to remain in a new co-ownership.
Third, once indivisibility has been declared, the law marks out the path. Article 552-11.5 of the Catalan Civil Code lays down the order. Allocation to the co-owner who has an interest in the property; if there is more than one, to the one holding the largest share; where interest and share are equal, by lot; and if none has an interest, sale and distribution of the price. Our client stated from the claim onwards that she had no interest in having the property allocated to her, so the mechanism was clearly set out from the very first pleading.
5.What the experts debated
The majority co-owner admitted our claim in part. He accepted the division of the jointly owned property, as could not be otherwise, but maintained that the property was divisible and should be declared capable of being placed under the condominium regime. The other three co-owners admitted the relief sought by our client, two of them expressly accepting the indivisible nature of the building. So the real lawsuit was one against one, with half of the shares on the other side.
The expert evidence was the decisive ground, and the interesting thing is that the experts for both sides agreed on the essentials. The expert for our side described the two upper floors as units still awaiting the final works needed to qualify as dwellings; and he pointed out that the kitchens had to be fitted out in order to meet the minimum habitability conditions required by “Decreto 141/2012”, the Catalan decree on housing habitability, and to be able to obtain the “cédula de habitabilidad”, the certificate of habitability. The expert put forward by the majority co-owner described those same floors as multi-purpose rooms with no internal layout at all, although declared as dwellings. Both noted the existence of constraints in the building services that would have to be redone. And it was precisely the other side's expert who put in writing the need to remove the goods lift connecting the ground floor with the first floor, at a cost he himself estimated at some eight thousand euros.
On value, our expert added something that the other side had not taken into account. The resulting independent units would be smaller, because floor area would have to be taken away and given over to common areas, which caused a loss of value of the whole.
6.The licence that arrived eight days before the hearing
In the middle of the proceedings, the majority co-owner produced a subdivision licence granted by the town council on 2 July 2025, eight days before the hearing. The document showed that a municipal licence was on record for the horizontal division of the building into three independent units plus the common elements, and that the aim now was to obtain two units out of one of those, the one formed by the ground floor and the first floor. It was, to all appearances, a coup de théâtre. If the town council authorised the division, how could the property be indivisible?
The answer lies in the distinction between being able to subdivide and being able to distribute. That a town council authorises the creation of three or four units does not mean that those units allow each co-owner to be allocated a part proportional to their share. The licence solved a planning problem. It did not solve the civil-law problem, which was arithmetical and remained the same.
7.What the court decided
The judgment declared the co-ownership extinguished and the property physically and legally indivisible, referring its division to the provisions of Article 552-11.5 of the Catalan Civil Code at the stage of enforcement of the judgment. No order was made as to costs.
The court first recalled, citing the doctrine of the “Tribunal Superior de Justicia de Cataluña”, the High Court of Justice of Catalonia, that the action for division is a single action and that there are not as many actions as there are ways of carrying it out. Once the action has been brought, the judge must decide in accordance with the issue raised by the parties, in this case whether the property is divisible or indivisible, without being bound by the form of division proposed by any of them. It then went over the criteria of Article 552-11, including the rule that allows a co-owner with at least eighty per cent of the shares to demand the allocation of the property by paying the others in cash, which was not applicable here. And it set out the Supreme Court's doctrine on the three forms of indivisibility, physical indivisibility, unfitness for use and loss of value, the latter understood as an evaluative concept that can be inferred from the facts.
On that basis, the judgment reaches its conclusion on three grounds. The first, that it would not be possible to establish the condominium regime sought by the majority co-owner, because there are not enough units to allocate proportionally according to the parties' rights in the co-ownership. The second, that there is a clear need for works and for redoing the building services, together with the removal of architectural elements and the difficulty of meeting the habitability requirements, and that carrying all of that out calls for compliance with technical and legal requirements that depend not on the will of the co-owners but on the owners' association. The third, that the division would be uneconomic because of the loss of value of the property, as the resulting units would be smaller once the floor area given over to common elements had been taken away.
8.Objective achieved
The order to be applied at the enforcement stage is fixed in advance and admits of no discussion. The property will be allocated to the co-owner who has an interest in it. If there is more than one, to the one holding the largest share, which is the fifty per cent co-owner. And if none expresses an interest, it will be sold and the price distributed among all of them according to their shares.
In any of the three scenarios our client receives the value of her share and ceases to be a co-owner. That is exactly what did not happen in any of the ways out that had been proposed to her over the previous eight years.
9.Why it matters
The interest of this decision goes beyond the specific case and touches on a very common situation. When a co-ownership has one majority co-owner and several minority co-owners, condominium is often presented as the reasonable and consensual solution. And sometimes it is. But one should look at the result, not the label. If the units that are created are not allocated in sole ownership to each co-owner in proportion to their share, what has been done is not to divide but to reorganise the co-ownership. The minority co-owner comes out of the procedure in the same position as they went in, multiplied by the number of new registered properties, and with the added problem that they will now have to reach agreement in several co-ownerships instead of one.
Hence the practical rule this matter leaves behind. Before accepting a proposal for division under the condominium regime, one must work out whether there are enough equivalent units to distribute in accordance with the shares. If the answer is no, that proposal does not bring the co-ownership to an end and does not fulfil the purpose of Article 552-10.
And a second lesson, on evidence. Indivisibility is not declared because it is alleged. It is declared because it is proved, and it is proved with expert evidence that does not stop at describing the building but goes into the three questions the case law works with, whether division is materially possible, whether it leaves the resulting properties fit for their use, and what value is lost along the way. In this matter, a good part of what the judgment relied on came from the report of the other side's expert.
