Partition Action (Judicial Partition) in Greece

Partition Action (Judicial Partition) in Greece – Requirements, Procedure and Methods of Partition

Detailed guide with Frequently Asked Questions (FAQ)

A partition action is the main legal tool by which a co-owner seeks the termination of co-ownership over a property (real estate) or any other jointly owned asset. Co-ownership arises when two or more persons jointly hold the same asset (e.g., real estate acquired through inheritance or purchase).

Under Greek Civil Code (in particular Articles 1113 and 795 GCC), each co-owner / participant in a community of rights has the right to demand the dissolution of the community by partition at any time, provided that this right is not excluded by a legal act or by the purpose of the jointly owned asset being intended for a continuing purpose.

What is a partition action?

A partition action is the judicial process by which one requests:

• The physical division of the jointly owned asset
• Its sale and the distribution of the proceeds
• The termination of co-ownership

Partition may be carried out either out of court (by agreement of all co-owners) or judicially through a lawsuit.

When is a partition action necessary?

A lawsuit is necessary when:

• There is no agreement among the co-owners
• There is disagreement as to the method of partition
• A co-owner refuses to cooperate
• There is abuse of common use

The judicial process aims at the final settlement of co-ownership and the determination of the appropriate method of partition.

Judicial Partition of Jointly Owned Property – Legal Framework and Key Principles

From the combined application of Articles 1113, 795, 798–801 GCC and Articles 478–481, 480A and 484 §1 of the Greek Code of Civil Procedure (GCCP), certain key principles arise regarding the judicial partition (partition action) of jointly owned property.

1. Each co-owner’s right to judicial partition

Under Article 795 GCC, no co-owner is obliged to remain in a community, since each co-owner may demand its dissolution at any time, provided that this right is not excluded by a legal act or by the purpose of the jointly owned asset being intended for a continuing purpose. If there is no agreement among all co-owners for an out-of-court partition, any one of them may seek dissolution through judicial partition.

Judicial partition is brought by filing a lawsuit before the competent court and is governed by Articles 478–481 GCCP (and, where applicable, Articles 480A and 484 §1 GCCP).

Therefore:

• The consent of all co-owners is not required.
• The disagreement of one co-owner is sufficient.

2. What is the claim (request) in a partition action?

Under Articles 1113 and 799 GCC, the basis of the action is the existence of co-ownership over the jointly owned property.

The substantive claim of the partition action is one and specific:
Dissolution of the community.

The manner in which the community will be dissolved is not a necessary element of the claim. In other words, the claimant is not required to request specifically:

• either partition in kind (physical division), or
• sale by auction.

The method of dissolution lies within the court’s discretion. Case law is consistent on this point (Areios Pagos decisions AP 151/2009, AP 1309/2005, AP 763/2002, AP 1053/1993).

The court:

• Is not bound by the parties’ request as to the method of partition.
• Decides based on the nature of the property and the feasibility of division.

3. Methods of dissolving the community

The court may choose:

1. a) Partition in kind (physical division)
   Where the property can be divided without substantial reduction of its value.
2. b) Sale by auction
   Where physical division is not feasible or would lead to serious devaluation.
3. c) Establishment of separate ownership (Article 480A GCCP)
   Since the entry into force of Law 1562/1985 (16.9.1985), the possibility of partition in kind of a plot of land has been expressly introduced:

• either by establishing horizontal ownership,
• or by establishing vertical ownership,
  where it concerns:
• a plot with a building,
• a plot with more than one building,
• a vacant but buildable plot.

The establishment of separate ownership is a form of partition in kind and not an alternative to sale.

4. Requirements for bringing a partition action

For a partition action to be legally admissible, two basic requirements must be met:

(1) Existence of a community of rights
There must be co-ownership under substantive law (Articles 785 et seq. GCC). Co-ownership must:

• concern the same property, and
• the parties’ shares must be determined.

This must be expressly stated in the statement of claim.

(2) Lack of agreement for an out-of-court partition
It must follow that there is no agreement among all co-owners. However, case law accepts that even if this is not expressly stated, the filing of the action itself evidences disagreement.

Therefore: the action is considered admissible even without an express allegation of disagreement.

5. No prior extrajudicial notice is required

Filing the action does not require:

• an invitation to settle, or
• a prior proposal for partition.

The right to partition is autonomous and may be exercised immediately.

6. The court’s discretionary power

The court has the authority to choose the most appropriate method of partition, even if none of the parties requested it. Its assessment is based on:

• the nature of the property,
• the feasibility of technical division,
• economic expediency.

Case law repeatedly confirms that the method of partition is not a binding element of the claim (AP 151/2009, etc.).

Requirements for bringing a partition action

To bring a partition action, the following are required:

1. Existence of co-ownership
   It must be established that the parties are co-owners of the same property, with specific shares.
2. Absence of an agreement excluding partition
   Co-owners may agree temporarily not to proceed with partition. If such an agreement exists, the action is not immediately admissible.
3. The property must be capable of partition
   Some assets cannot be divided physically (e.g., a small apartment). In such cases, another method of partition applies.

Methods of partition

Partition may be carried out in three main ways:

1. Partition in kind (physical division)

The property is divided into parts proportionate to the co-owners’ shares.
Example: a plot that can be subdivided into two buildable parts.
Partition in kind is preferred where it is technically and legally feasible.

2. Sale by auction

Where the property cannot be divided without substantial loss of value, the court orders its sale (typically by auction) and the proceeds are distributed according to the co-ownership shares. This is common in:

• apartments
• detached houses
• small-size properties

3. Equalisation of unequal shares (equalisation payment / establishment of an easement)

Where partition in kind is ordered, the court may, to equalise unequal shares, decide that co-owners who receive certain parts shall pay a sum of money to other co-owners, or may establish an easement over certain parts in favour of other co-owners (Article 481 GCCP).

Procedure of a partition action

The procedure includes:

1. Filing the lawsuit before the competent court
2. Service on the other co-owners
3. Hearing
4. Issuance of the judgment

The court examines:

• the existence of co-ownership
• the possibility of partition in kind
• economic and technical feasibility

In many cases, an expert is appointed (e.g., an engineer) to assess whether subdivision is possible.

What happens after the judgment?

If partition in kind is ordered:

• a topographical plan is prepared
• a notarial deed is executed

If sale is ordered:

• an auction is conducted
• the proceeds are distributed

The judgment is enforced in accordance with Greek law.

Can the right to partition be excluded?

As a general rule, no. Under Article 795 GCC, each co-owner may demand dissolution at any time, provided that this right is not excluded by a legal act or by the purpose of the jointly owned asset being intended for a continuing purpose. Only a temporary restriction may be agreed.

What if the property comes from an inheritance?

Where multiple heirs acquire real estate intestate or by will, co-ownership arises. If they do not agree on partition, a partition action is the usual solution.

Are there tax implications?

Partition of real estate may entail:

• transfer tax (in certain cases)
• notarial costs
• court costs

Tax treatment depends on the method of partition.

Frequently Asked Questions (FAQ)

1. Can only one co-owner file the action?
   Yes. Consent of the other co-owners is not required.
2. How long does the procedure take?
   Typically 1–3 years, depending on the court.
3. Can the procedure be stopped by settlement?
   Yes, at any time before judgment.
4. What if someone does not participate?
   The procedure continues normally.
5. Can an auction be ordered even if I do not want it?
   Yes, if the property is not capable of physical division.
6. What if I live in the property?
   Possession does not exclude partition.
7. Can I claim compensation for use?
   Yes, compensation for exclusive use may be claimed.
8. Is an expert required?
   Often yes, especially for plots of land.
9. Can partition be done out of court?
   Yes, by notarial deed.
10. Can an appeal be filed?
    Yes, an appeal may be filed against the judgment.

Conclusion

A partition action is a fundamental right of every co-owner who wishes to terminate co-ownership. The method of partition depends on the nature of the property and the circumstances of the case.

Proper legal guidance is crucial, as the procedure materially affects the financial position of all parties.

This article is for informational purposes only and does not constitute legal advice. Each case requires an individual assessment based on the specific facts and the applicable Greek legal framework. For tailored legal advice, please contact our law firm.