Last Updated on June 28, 2021 by LawEuro
German Civil Code (BGB) German law
Title 17
Co-ownership
Section 741
Co-ownership by defined shares
Where more than one person is jointly entitled to a right, then, unless the law leads to a different conclusion, the provisions of sections 742 to 758 apply (co-ownership by defined shares).
Section 742
Equal shares
In case of doubt it is to be assumed that the part owners are entitled to equal shares.
Section 743
Share in the fruits; authority to use
(1) A fraction of the fruits corresponding to his share is owed to each part owner.
(2) Each part owner is authorised to use the joint object to the extent that joint use by other part owners is not impaired.
Section 744
Joint administration
(1) The part owners are jointly entitled to administration of the joint object.
(2) Each part owner is entitled to take the measures required to maintain the object without approval by the other part owners; he may demand that the latter grant their consent to such a measure in advance.
Section 745
Administration and use by resolution
(1) By a majority of votes it may be resolved that there is to be proper administration and use appropriate to the quality of the joint item. The majority of votes is to be calculated according to the size of the shares.
(2) Each part owner may, where administration and use is not regulated by agreement or by a majority vote, demand administration corresponding to the interests of all part owners according to their reasonably exercised discretion.
(3) No substantial change to the object may be resolved or demanded. The right of each part owner to a fraction of the emoluments corresponding to his share may not be impaired without his approval.
Section 746
Effect in relation to successors in interest
If the part owners have made arrangements for the administration and use of the joint object, the determination reached also takes effect for and against the successors in interest.
Section 747
Disposal of a share and joint objects
Each part owner may control his own share. The part owners may control the joint object in its entirety only jointly.
Section 748
Bearing of charges and costs
Each part owner is obliged to the other part owners to bear the charges of the joint object as well as costs of maintenance, administration and joint use according to the proportion of his share.
Section 749
Cancellation claim
(1) Each part owner may at any time demand cancellation of the co-ownership.
(2) If the right to demand cancellation is excluded by agreement permanently or for a period of time, then cancellation may still be demanded if there is a compelling reason to do so. Subject to the same requirement, if a notice period has been specified, cancellation is admissible without complying with the notice period.
(3) An agreement by which the right to demand cancellation is excluded or limited contrary to these provisions is void.
Section 750
Exclusion of cancellation in case of death
If the part owners have temporarily excluded entitlement to demand cancellation of co-ownership, then in case of doubt the agreement loses its effect upon the death of a part owner.
Section 751
Exclusion of cancellation and successors in interest
If the part owners have excluded entitlement to demand cancellation of co-ownership permanently or temporarily or have specified a notice period, then the agreement is effective for or against successors in interest as well. If a creditor has had the share of a part owner attached, then he may demand cancellation of co-ownership notwithstanding the agreement if the instrument of indebtedness is not merely provisionally enforceable.
Section 752
Division in kind
Cancellation of co-ownership occurs by division in kind if the joint object is or, if there are more than one object held jointly, the joint objects are capable of being divided into identical parts corresponding to the shares of the part owners without reducing their value. The distribution of identical parts among the part owners is effected by drawing lots.
Section 753
Division by sale
(1) If division in kind is excluded, then the cancellation of co-ownership occurs by sale of the joint object according to the regulations on sale of a pledge, or in the case of a plot of land by compulsory auction, and by division of the proceeds. If disposal to a third party is inadmissible, then the object must be auctioned off among the part owners.
(2) If the attempt to sell the object is unsuccessful, then each part owner may demand a repeated attempt but must bear the costs if a repeated attempt fails.
Section 754
Sale of joint claims
The sale of a joint claim is only allowed if it cannot yet be collected. If collection is possible, then each part owner may demand joint collection.
Section 755
Discharge of a joint debt
(1) If the part owners are jointly and severally liable for an obligation that they will have to discharge in the proportion of their shares in accordance with section 748 or that they have entered into for the purpose of discharging such an obligation, then each part owner may demand upon cancellation of the co-ownership that the debt is discharged out of the joint object.
(2) The claim may also be asserted against successors in interest.
(3) To the extent that sale of the joint object is required for discharge of the debt, sale must occur in accordance with section 753.
Section 756
Discharge of the debt of a part owner
If one part owner has a debt to another part owner that is based on the co-ownership, then when the co-ownership is cancelled he may demand discharge of his claim from the part of the joint object attributable to the debtor. The provisions of section 755 (2) and (3) apply.
Section 757
Warranty upon allocation to a part owner
If, upon the cancellation of co-ownership, a joint object is allocated to one of the part owners, then each of the remaining part owners must give a warranty in the proportion of his share for a legal defect or a material defect in the same manner as a seller.
Section 758
Right of cancellation not subject to the statute of limitations
The claim to cancellation of co-ownership is not subject to the statute of limitations.
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