Judicial Distribution (CC 799)
If not all the co-owners agree to dissolve the co-ownership by distribution, each co-owner can request judicial distribution (CC 799) according to the provisions of the CCC.
Judicial distribution is the distribution caused by the filing of a lawsuit and occurs with the issuance of a court decision, which orders either the distribution itself or the sale by auction according to the terms of the law (EphAθ 4127/2001, ElΔνη 2003 1401. Papasteriou, EmbrD, II, § 66, No 150. Papasteriou, in Georgiadis/Stathopoulos CC, Art. 1887, no. 39. N. Psouni, KlerD3, I, p. 517).
The court may choose one of the following indicative forms of judicial distribution:
* The actual distribution, if feasible, by formation of the parties by lot or without lot (CC 800).
* The sale of the common property either by auction (CC 801) or without auction, and the distribution of the proceeds of the sale. In this case the sale may be agreed either to one or more co-owners or to a third party or third parties.
* The partial distribution of the joint and the partial sale of the remainder.
* The formation of several smaller groups of joint tenants under a single joint tenancy.
* The partial dissolution of the joint tenancy, in which case the joint tenancy remains in the remainder of the common property.
According to the judgment no. 115/2011 “”…According to Article 800 CC, the distribution shall be made by itself if the object or objects to be distributed can be divided into similar parts according to the shares of the partners without reducing the value; according to Article 480 § 1 CCP, the court shall decide on the distribution by itself if it is possible to divide the object to be distributed into parts according to the shares of the partners without reducing its value.
From these provisions, in conjunction with that of article 481 no. 1 of the CCP according to which the court is not obliged to order proof if it finds that the automatic distribution is manifestly possible, impossible or unprofitable, it follows that the judgment on the ineffectiveness or unprofitableness of the automatic distribution is a judgment on facts and therefore it is not subject to appeal, unless there is a case of violation of the doctrines of common experience or lack of legal basis according to Art. 1 and 19 of the CCP On the other hand, it is manifestly impossible or unprofitable to distribute the property as such when, according to the rules of common experience and logic, the property to be distributed cannot be divided into parts according to the shares of the partners without reducing its value (…), in which case the court orders the sale by auction in accordance with Article 484(1) of the CCP…’
Right to Judicial Distribution
The right to judicial distribution is introduced by CC 799, according to which ‘If all the partners do not agree to the distribution, each partner may demand judicial distribution in accordance with the provisions of civil procedure’.
The right to judicial distribution is exercised by an action for distribution, which seeks the distribution of the common property.
An action for distribution is a divisional, mixed action and is registered in the land registry.
The action for distribution is a double action, a judgment which derives from the fact that each partner is at the same time ‘the joint and opposing party of the other partners’.
The request of the distribution action is, on the one hand, to recognise the right of the plaintiff co-owner to request the dissolution of the co-ownership and, on the other hand, to have the court make the distribution. It is not necessary for the claim to contain in the claim that the dissolution of the joint tenancy will be effected by distribution as such or by sale at auction. This is within the powers of the court, which is not bound by the choices of the opposing parties CP 981/2002, ElΔνη 44 (2003) 1294-1295. Kerameys/Kondylis/Nikas (-Orphanides), CCP I (2000) 478 No 13. Nikas, PolD, II, § 107, no. 3, p. 809. L. Pipsou, DikDian, pp. 96-97.
“….the request of the action for the distribution of common property is the dissolution of the community existing over it, and the manner of dissolution of the community, i.e. whether this dissolution will take place by distribution or by sale at auction, is not necessarily included in the request of the action for distribution, but is within the powers of the court…” APP 106/2013, LAW. AP 913/2011, EPC 2012 171. RPC 6293/2012, LAW. BPR 61/2012, LAW.
The action for distribution may be brought only by the small owner or jointly by the small owner and the usufructuary. Otherwise, it cannot be brought only by the usufructuary, since he is not one of the floor owners, who have the right to dissolve the floor ownership.
Judicial distribution presupposes the bringing of an action for dissolution, which is entered in the registers of claims and tried under the ordinary procedure, and the decision is therefore subject to the ordinary legal remedies, the exercise and adjudication of which is carried out in accordance with the general provisions of the CCP.