Sale of undivided share of property

It frequently happens that a property originally owned by a single person, due to inheritance or by inter vivos deed of transfer, comes into the ownership of a plurality of persons, constituting a pro indiviso community over the same property.

In such a circumstance, each co-owner would have full and free disposal of his or her undivided share over the entire common mass composed of a multiplicity of assets (so-called quotona), while he or she could not freely dispose of the different undivided share referring to the individual asset forming part of the larger communion (so-called quotina).

This different conception derives from the circumstance that the transfer in full of one’s ideal share to a third party – without prejudice to any rights of pre-emption on the purchase by the other communists – with the latter taking over the same situation originally in the hands of the transferor, would not entail any objective modification of the pre-existing situation and, therefore, would not result in the burden of proceeding with a subsequent act of division.

The transfer has, therefore, immediate translative effects in the hands of the third party successor in title, who will take over the same situation as the communist-alienant – his predecessor in title – precisely by virtue of the unnecessary “material” assignment of the shares in the hands of the same for the purposes of transfer.

Otherwise, as repeatedly confirmed by the Supreme Court, the communist will not be able to freely dispose of the sale of only the “quotina,” that is, the undivided share on a single property part of a larger mass. The alienation of such portion of property – given the non-intervened division – would, in fact, configure a sale of other people’s property, a contractual case whose translative effect will be conditional on the actual allocation of the specific asset, in the division, in the hands of the original predecessor of the third-party purchaser (see, among others, Cass, U.S., March 15, 2016, No. 5068; Cass., April 23, 2013, No. 9801; Cass., February 15, 2007, No. 3385; Cass., April 29, 1992, No. 5181; Cass., June 15, 1988, No. 4092).

Therefore, at the time of partition, the only de facto presence required will be that of the alienator, since the third party successor, does not become a party to the community (not taking over, unlike in the case of the sale of the so-called quotona, the position of the alienator). The buyer remains bound to the promissory seller alone by virtue of an obligatory relationship arising from the contract between them.

On this point, it should be pointed out that pursuant to Article 1113(3) of the Civil Code, the third party successor in title will have the right (subject to prior summons) to intervene in the divisional proceedings, as a party who could have his or her rights damaged in the event that a different property than the one under contract or a smaller portion of the share due to him or her is assigned to his or her successor in title.

In case of failure to convene, the deed of division, while remaining valid and effective between the parties, may not be opposed to third parties meeting the requirements of the aforementioned Article 1113 of the Civil Code.

On a practical level, in the event of alienation by one co-owner of the ideal portion of ownership of a piece of land forming part of a larger compendium, in order to enable the purchaser to take over full ownership of the promised portion of the property(quotina), it will be necessary to carry out the prior division of the same so as to assign to each original co-owner a defined and specifically identified portion of the property originally held in common.

Otherwise, in the case of alienation of the entire ideal share of the total mass (e.g., a plurality of real estate), the third purchaser will take over the same situation existing in the hands of his or her predecessor, thus with simple takeover of the same ideal share of the community, subject to any rights of pre-emption by the other co-owners in the case of hereditary community guaranteed by both the Civil Code and the agrarian regulations.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo