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Dividing an inherited property among a deceased’s children and family members may seem straightforward, but reality shows that some real estate cannot be physically partitioned without rendering the resulting portions unusable or causing a significant loss in value.
To address this, Kuwaiti legislator Article 830/1 of the Civil Code stipulates that each co-owner has the right to request partition of the jointly owned property, unless they are legally or contractually obligated to remain in co-ownership.
But what if the property cannot be divided at all?
In such cases, Article 836/1 of the Civil Code provides the solution. It states that if physical partition is impossible or would cause a substantial reduction in the property’s value, the court shall order its sale by public auction in accordance with the procedures outlined in the Code of Civil Procedure. The law also permits restricting bidding to the co-owners themselves, if they unanimously request it, under the conditions specified by the provision.
The transition from jointly owned real estate to a divisible monetary proceeds does not aim to deprive any heir of the property. Rather, it seeks to terminate the state of co-ownership when physical partition becomes impossible or detrimental to the property’s value. Instead of each heir receiving a physically separated portion of a house that may not be suitable for independent use, the property is converted into monetary proceeds, which then replace the property itself in determining each co-owner’s entitlement.
Before proceeding with the sale, it is essential to identify the rights holders and their respective shares, and to verify the property’s title deed and official records. The identification of the property in legal proceedings must be based on its fixed data in the real estate registration records, including its location, area, boundaries, and other necessary details required for its precise identification.
This highlights the importance of publishing and registering the property’s documents, deeds, and related court rulings. Real estate is not merely a physical asset; it is a real right with an official registry. Its legal effects cannot be established solely through customary documents or agreements that fail to comply with the procedures mandated by law.
After completing the sale and settling any rights, expenses, or priority obligations related to the property, the proceeds become subject to division among the rights holders. Each heir receives their share according to the portion established for them in the estate.
Thus, selling an inherited property when physical partition is impossible is not a violation of ownership rights, but rather a legal mechanism to protect those rights and terminate co-ownership.
Justice in this context does not mean that each heir retains a wall, a room, or an indivisible portion of a house. Rather, it ensures that each rights holder ultimately receives the monetary value corresponding to their share.
