Can you sell a jointly owned property without every co-owner's consent?

The principle: selling the building requires unanimity

Selling a jointly owned property is an act of disposal: Article 815-3 of the French Civil Code reserves it to the consent of all the co-owners. The refusal of a single one therefore blocks the sale, whatever their share. The legislature has nevertheless opened two judicial ways out: one based on jeopardy to the common interest, the other on the will of a qualified two-thirds majority.

Article 815-5: overriding a refusal that endangers the common interest

A co-owner may be authorized by the court to carry out alone an act that would normally require another co-owner's consent, if that co-owner's refusal endangers the common interest (Article 815-5 of the French Civil Code). The judge assesses the jeopardy in concrete terms: a property falling into disrepair, unpaid charges piling up, a joint ownership financially suffocated. An act carried out under the conditions set by the authorization is enforceable against the co-owner whose consent was lacking.

Two important limits: the judge may not, at the request of a bare owner, order the sale of the full ownership of a property encumbered by a usufruct against the will of the usufructuary (Article 815-5, paragraph 2). And if a co-owner is simply unable to express their will, the appropriate route is the judicial authorization to represent them provided for by Article 815-4, not Article 815-5.

Article 815-5-1: the sale requested by the two-thirds majority, step by step

Introduced by Law No. 2009-526 of 12 May 2009, Article 815-5-1 of the French Civil Code allows the judicial court to authorize the sale of a jointly owned property at the request of the co-owner or co-owners holding at least two thirds of the undivided rights, calculated in rights and not per head. The procedure is strictly regulated:

• the majority co-owners state before a notary their intention to proceed with the sale of the property;
• the notary has this intention served on the other co-owners within one month;
• if a co-owner opposes the sale or fails to respond within three months of service, the notary records this in an official report;
• the judicial court may then authorize the sale, provided it does not excessively infringe the rights of the other co-owners; the authorized sale is enforceable against the co-owner whose consent was lacking.

The pitfalls of Article 815-5-1

• The authorized sale takes place by licitation, that is, by auction: the provision does not allow a private sale to a buyer already found, which creates the risk of a price below market value.
• The mechanism is excluded where ownership of the property is split between usufruct and bare ownership, and where one of the co-owners is in one of the situations listed in Article 836 of the French Civil Code (presumed absent, unable to express their will, or a protected adult).
• The sums raised by the sale may not be reinvested, except to pay the debts and expenses of the joint ownership: the balance is distributed among the co-owners according to their shares.