Co-owned flat and the other owner will not sell: seek division
Last updated 2026-09-28 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
Nobody is obliged to remain in co-ownership. You can bring the action for division of common property, which never lapses between co-owners (article 1965 of the Civil Code), as a juicio verbal (the shorter form of civil proceedings) before the sección civil del Tribunal de Instancia (the civil section of the first-instance court) where the flat is located. You must first attempt a settlement. If your brother will not agree, the flat is sold at public auction and the price is shared out.
Your mother died in 2021 and, in the deed of inheritance, you and your brother were each allotted half of the family flat. He has lived there ever since, pays you nothing for occupying it, and you keep paying half the property tax and half the building service charge. A year ago he changed the lock, for security he says, and has not given you a key. You need your money and have proposed selling. He refuses, says it is your parents' home and offers you 70,000 euros for your half, when local estate agents value the flat at about 230,000. You have spent two years waiting for him to see sense.
The case, in five lines
- What is brought
- The action for division of common property under articles 400 and 404 of the Civil Code: the court is asked to declare the flat indivisible, to order its sale at public auction open to outside bidders, and to share the price according to each owner's share.
- Before which court
- The sección civil del Tribunal de Instancia (the civil section of the first-instance court) for the judicial district where the flat is located (article 52.1.1 of the Civil Procedure Act), as a juicio verbal (the shorter form of civil proceedings) whatever the flat is worth (article 250.1.16). Appeals are decided by the Audiencia Provincial (the provincial appeal court).
- Deadline
- None for the division itself: it never lapses between co-owners (article 1965 of the Civil Code) and can be sought at any time while the co-ownership lasts. Other periods do run: five years to claim back what you advanced in expenses, counted from each payment (article 1964.2), and nine days for the co-owners' right of redemption if your brother sells his half to an outsider, counted from registration in the Land Registry or, failing that, from when you learn of the sale (article 1524).
- Who can bring it
- Any co-owner, whatever the size of his share, against all the other co-owners, every one of whom must be named in the claim. If your brother's half is registered as marital community property, his spouse should be sued as well, and the co-owners' creditors or assignees may take part in the division (article 403 of the Civil Code).
- Financial risk
- Costs in principle follow the event, and since the 2025 reform the court takes into account who refused, without good cause, to attempt a settlement; where the defendant does not dispute the division but only how to carry it out, some courts make no costs order. The bigger risk lies elsewhere: an auction can close well below market value, and that loss is borne by both of you according to your shares. The expert report and the costs of enforcement have to be advanced.
Nobody can force you to stay a co-owner, and the action never lapses
Article 400 of the Civil Code is the foundation of the whole case: no co-owner is obliged to remain in co-ownership, and each of them may ask at any time for the common property to be divided. Article 1965 closes the circle by providing that the action to seek division does not lapse between co-owners. It makes no difference whether the co-ownership has lasted two years or twenty: your brother gains nothing by letting time pass, and you do not lose the right for having waited.
What your brother can raise against it is very little. The Tribunal Supremo (the Supreme Court) has held that the exercise of this action is not subject to any obstructing circumstance and that the only ground of opposition is an agreement to keep the property undivided, which article 400 itself limits to ten years, extendable by a new agreement. That it is your parents' home, that he lives there or that he has nowhere else to go are reasons that weigh in the negotiation, but they do not prevent division.
Article 401 adds a limit that confuses many people: physical division cannot be demanded when the property would become unfit for the use for which it is intended. A flat cannot be split into two habitable halves, so the case moves on to article 404: if the property is essentially indivisible and the co-owners do not agree to award it to one of them, compensating the others, it is sold and the price is shared. Only where it is a building whose features allow it may any co-owner ask for the division to be made by awarding separate flats or premises.
First of all, confirm that this is ordinary co-ownership
The action for division of common property is for ordinary co-ownership: two or more people who own an asset in shares, as happens when a flat is bought jointly or when an estate has already been divided and the flat was allotted in halves by deed. If your mother's estate has still not been divided, what exists is an inheritance community and the route is judicial division of the estate, which we explain in the guide on the sibling who blocks the division. Choosing the wrong action means a claim dismissed and months lost.
Something similar happens with marriage. A flat held as marital community property (gananciales) is not divided with this action but by winding up the marital community. If the flat belongs to two spouses in ordinary co-ownership, article 437.4 of the Civil Procedure Act allows either of them to bring the division together with the separation or divorce. And if what you hold jointly is a share of a garage or of another element of a building under the horizontal property regime, article 4 of the Horizontal Property Act rules out division where that co-ownership was deliberately set up for the common service or benefit of all the owners.
The claim must be brought against all the other co-owners. This is compulsory joinder of defendants: if one is missing, the court cannot decide the merits, which is why the Land Registry certificate is obtained before anything else. If your brother's half is registered as marital community property, his spouse should be sued as well, because otherwise the registrar may refuse to register the outcome of the auction. And under article 403 of the Civil Code, the creditors or assignees of the co-owners may take part in the division and oppose one carried out without them.
The settlement attempt is compulsory, and it is also your best weapon
Since April 2025, article 5 of Organic Act 1/2025 requires in civil matters, for a claim to be admitted, that the parties first resort to an appropriate dispute resolution method. Division of common property is a declaratory proceeding under Book II of the Civil Procedure Act and is not among the excepted matters, so the requirement applies. Mediation, conciliation, the opinion of an independent expert, a confidential binding offer or direct negotiation between the parties or between their lawyers all qualify.
The law requires identity between the subject of the negotiation and the subject of the litigation. If, besides the division, you intend to ask your brother to compensate you for his exclusive use of the flat or to reimburse the expenses you have advanced, all of that must be part of the negotiation. A burofax (a certified letter with proof of content) that only says you want to sell leaves the money out, and a claim that later seeks it risks having that part rejected.
Properly framed, this step is much more than a formality. A concrete offer, backed by a valuation and with two clear exits (he buys your half at market value, or you both sell to a third party within a set time), confronts your brother with the real cost of saying no. Since the reform, the Civil Procedure Act takes into account, when awarding costs, anyone who refuses without good cause to take part in the settlement attempt, and someone who concedes late after having rejected it may end up paying them. There is no need to repeat the attempt in order to enforce the judgment: article 5.3 excludes enforcement claims.
A juicio verbal in the flat's judicial district, and then the auction
Since 20 March 2024, article 250.1.16 of the Civil Procedure Act requires claims for division of common property to be decided as a juicio verbal, whatever their value. It makes no difference whether the flat is worth a hundred thousand euros or a million. Jurisdiction lies with the sección civil del Tribunal de Instancia for the place where the property is located, because the Tribunal Supremo treats this action as a real action for the purposes of the venue rule in article 52.1.1, which cannot be displaced by agreement. Your brother has ten days to file a written defence, and the judgment can be appealed to the Audiencia Provincial within twenty days.
The judgment declares the flat indivisible and orders its sale with the price shared according to each owner's share. Here is the key point that almost nobody explains: the judge cannot force either of you to buy the other's half. Article 404 only allows the property to be awarded to one owner if the co-owners agree, and article 1062, applicable through the reference in article 406, provides that it is enough for a single owner to ask for a sale at public auction, open to outside bidders, for that to happen. Your brother cannot force a cheap buyout, and you cannot force him to buy.
The sale takes place when the judgment is enforced, which is requested through an enforcement claim. If you both agree, you can enter into a realisation agreement, including a sale through a specialised person or entity, which the 2025 reform folded into article 640 of the Civil Procedure Act and which requires agreement. Without it, the flat goes to electronic auction on the BOE Auction Portal. Either of you can bid, and if one of you wins, the part he already owns through his share is deducted from the price. If the whole flat is sold, there is no right of redemption: the auction brings the co-ownership to an end.
Your brother lives in the flat: use and expenses can be recovered too
Article 394 of the Civil Code allows each co-owner to use the common property in line with its purpose, provided he does not prevent the others from using it according to their rights. Your brother living in the flat is not unlawful in itself. What changes the position is exclusion: changing the lock, refusing you a key and refusing to pay anything for the half that is yours. Courts then tend to recognise compensation for exclusive use, usually calculated on the rental value of the other owner's share and counted from when it was formally demanded, not before: years of silence are read as tolerance.
Expenses follow a different rule. Article 395 gives every co-owner the right to make the others contribute to maintenance costs, and article 393 shares benefits and burdens in proportion to the shares. In addition, article 406 refers to the rules on division of an estate, and article 1063 requires the parties to account to each other for rents and income received, useful and necessary outlays, and damage caused by bad faith or negligence. If your brother let out a room, or you paid a special levy in full, it goes into the account. Sums you advanced are claimed within the five-year period of article 1964.2, counted from each payment.
Two warnings from the courtroom. An eviction for precarious occupation (desahucio por precario) against a co-owner usually fails, because he has title, his own half, and courts point the parties to division. And the juicio verbal only allows claims to be joined in the cases listed in article 437.4 of the Civil Procedure Act, such as claims based on the same facts: depending on how it is framed and how much is claimed, the compensation and the expenses will go in the same claim or in a parallel one. Meanwhile, since at 50% each there is no majority to manage the flat, article 398 lets you ask the judge to make whatever provision is appropriate, including appointing an administrator.
What drives the price down, and the move of selling your half
The auction is the worst outcome for both of you, and it is worth knowing that before you start. A live mortgage, a tenant with a lease or a usufruct do not prevent division, but they are sold together with the flat, and bidders deduct all of that from what they offer. Whatever is lost at auction is lost by both of you according to your shares. That is why the claim is almost never an end in itself: it is the tool that turns an open-ended no into a negotiation with a deadline, and many of these cases end in an agreed sale or in one owner buying the other's half before the auction.
There is another way out that your brother may not expect: article 399 allows each co-owner to sell his share. There are companies that buy undivided shares, pay little for them and then bring the division claim themselves. But if you sell your half to an outsider, article 1522 gives your brother the co-owners' right of redemption: he can take that half by reimbursing the buyer the price and costs, within the nine days set by article 1524, counted from registration in the Land Registry or, failing that, from when he learned of the sale. And the other way round: if he is the one who sells his half, the right of redemption is yours and the clock runs against you.
If the flat is in Catalonia, Aragon, Navarre, Galicia or the Basque Country, the firm first reviews that region's own civil law, which in some cases has different rules on awarding the common property. And even once the auction has been called there is still room: the parties can agree a sale or an award up to the last moment, and the agreement often comes precisely then, when the auction value has been published and neither of you wants to risk a low winning bid.
How we run the case, step by step
- 1
Land Registry certificate and title
We obtain the certificate of ownership and charges and the acquisition deed to confirm that this is ordinary co-ownership, establish the shares, identify every co-owner (and the spouse if a half is marital community property) and uncover mortgages, usufructs, attachments or an agreement not to divide.
- 2
Valuation and account of sums advanced
We commission an expert valuation of the flat and a report on local rental values, and use your bank statements to calculate what you have overpaid in property tax, service charges, special levies and insurance, separating out anything less than five years old.
- 3
Formal demand and settlement attempt
We send a burofax demanding use of the flat or compensation and opening the negotiation required by article 5 of Organic Act 1/2025, with a concrete offer: he buys your half at the valued price, or you both sell to a third party within a set time, with expenses and use included in what is negotiated.
- 4
Division claim as a juicio verbal
We file the claim before the sección civil del Tribunal de Instancia for the flat's location against all the co-owners, seeking a declaration of indivisibility and a sale at public auction open to outside bidders, and we decide whether the money claims are joined or brought separately.
- 5
Defence, hearing and judgment
Your brother has ten days to file a defence. We use the expert evidence to rebut any alleged agreement not to divide or claimed divisibility, and we keep negotiating: the agreement often comes at this stage. The judgment can be appealed to the Audiencia Provincial within twenty days.
- 6
Enforcement, auction and distribution
We seek enforcement through an enforcement claim, with no new settlement attempt. We propose a realisation agreement if there is consensus; if not, the flat goes to electronic auction, you decide whether to bid and, once it is sold, the price is shared according to the shares with whatever adjustment for expenses and use is due.
The evidence that decides the case
- The Land Registry certificate of ownership and charges: it fixes the shares, tells you whom to sue (including the spouse if a half is marital community property) and reveals mortgages, usufructs and attachments that will shape the auction.
- The deed by which you acquired the flat, whether a purchase or an estate already divided: it proves that this is ordinary co-ownership and not an undivided estate or marital community property, and rules out or reveals an agreement not to divide.
- The expert valuation of the flat: it supports indivisibility, sets the reference value for the offer and for the auction, and demolishes your brother's lowball counter-offer.
- The document proving the settlement attempt, with the concrete offer and the reply or the silence, and with the division, the use and the expenses all within what was negotiated so that the whole claim is admitted.
- Proof of exclusion: the burofax asking for a key or compensation, the refusal, the change of lock, your brother's registration as resident at the address and a report on local rental values, which is the basis for the compensation.
- The receipts for property tax, service charges, special levies and insurance that you paid, with the bank statements and in date order, to know what is still recoverable within the five years.
What closes the door
- Filing the claim without having attempted the prior settlement, or with an attempt that only talked about selling and not about the money: the claim, or that part of it, is not admitted.
- Suing only your brother when there are other registered co-owners, or leaving out his spouse when his half is marital community property: the court cannot decide without all of them and the award may not be registrable.
- Bringing a division of common property claim when the estate is still undivided or when the flat is marital community property: it is the wrong action and the whole case is lost.
- Forcing your way in, changing the lock yourself or cutting off the utilities: it is self-help that hands your brother a case against you and can have criminal consequences.
- Selling your half to a buyer of undivided shares without allowing for the right of redemption, or learning that your brother has sold his and letting the nine days of article 1524 of the Civil Code go by.
- Putting up with exclusive use for years without a written demand: compensation is usually counted from the demand, and expenses paid more than five years ago are lost.
The law that applies
- Art. 400 CC. No co-owner is obliged to remain in co-ownership and each may ask at any time for the common property to be divided. The only valid exception is an agreement to keep it undivided for a fixed period of no more than ten years, extendable by a new agreement. BOE-A-1889-4763
- Art. 404 CC. If the property is essentially indivisible and the co-owners do not agree to award it to one of them compensating the others, it is sold and the price is shared. For pets it sets its own rules, which exclude a sale without unanimous agreement. BOE-A-1889-4763
- Art. 1062 CC. Property that is indivisible or loses much value on division may be awarded to one party, who pays the others the excess in money, but it is enough for a single party to ask for a sale at public auction, open to outside bidders, for that to happen. It applies to common property through the reference in article 406. BOE-A-1889-4763
- Art. 395 CC. Every co-owner may compel the others to contribute to the maintenance costs of the common property. Only someone who gives up his share of the ownership is released from that obligation. BOE-A-1889-4763
- Art. 1522 CC. The co-owner of common property may exercise the right of redemption when the share of the other co-owners, or of any of them, is sold to an outsider. If several wish to exercise it, they may do so only in proportion to their shares. BOE-A-1889-4763
- Art. 1965 CC. The action to seek division of an estate, division of common property or the fixing of boundaries between adjoining properties does not lapse between co-heirs, co-owners or owners of neighbouring land. BOE-A-1889-4763
- Art. 250.1.16.º LEC. Claims in which the action for division of common property is brought are decided as a juicio verbal, whatever their value. This wording has been in force since 20 March 2024. BOE-A-2000-323
- Art. 5 LO 1/2025. Makes prior resort to an appropriate dispute resolution method with the same subject matter, including negotiation between the parties or their lawyers, a condition of admissibility in civil declaratory and special proceedings, save for the excepted matters. It is not required for an enforcement claim. BOE-A-2025-76
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
Can my brother refuse to sell forever?
No. Article 400 of the Civil Code says that no co-owner is obliged to remain in co-ownership and that each may ask for division at any time, and article 1965 prevents that action from lapsing. The only barrier is an agreement not to divide signed by you both, which cannot exceed ten years, although it can be extended by a new agreement. Beyond that, his refusal only delays the outcome and makes it more expensive for both of you.
My brother lives in the flat and pays me nothing. Can I evict him or charge him?
Evicting him as if he were an occupier without title does not usually work, because he owns half. What you can do is demand in writing that he lets you use the flat or compensates you for his exclusive use, and that he contributes to the expenses under article 395 of the Civil Code. Compensation is usually counted from that demand, so it is worth sending it as soon as possible. The definitive way out is division.
Can the judge force him to buy my half, or me to buy his?
No. Article 404 only allows the flat to be awarded to one of you if you both agree, and article 1062 provides that it is enough for one of you to ask for a sale at public auction with outside bidders for that to happen. Either of you can bid at that auction, and if one of you wins, he pays the price less the part that already belongs to him through his share.
We inherited the flat from our parents. Is it the same action?
It depends on whether the estate has been divided. If the deed of inheritance allotted you the flat in halves, you have ordinary co-ownership and division of common property applies. If the estate is still undivided, the proper route is judicial division of the estate, which has its own procedure. In both cases the action never lapses, but choosing the wrong route costs a dismissed claim.
What if I sell my half to a company that buys undivided shares?
You can, because article 399 of the Civil Code allows each co-owner to sell his share. But your brother will have the co-owners' right of redemption under article 1522: he can take that half by paying the same price, within nine days of the sale being registered or of learning of it. Moreover, these companies pay well below market value, because they discount the lawsuit that will follow.
This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.