Court Order to Sell Jointly-Owned (Shared) Property
2024-09-01
Legal Basis of the Petition
In examining a request for the sale order for jointly-owned (shared/moshaa') property, attention must be paid to the lawsuit for partition (afraz) and division of shared property and its direct connection to the lawsuit for the sale of shared property. After a certificate of non-partitionability has been issued by the registration office or the court and has become final, any of the co-owners may apply to the court to request the sale of the shared property. Upon receiving the request for a sale order, the court, without setting a hearing date, issues the order for the sale of the shared property and sends the issued ruling to the civil enforcement of judgments unit.
Parties to the Request
Any co-owner who wishes to sell the shared property files the request against all of their co-owners. So, for example, if a property has four co-owners and one of them seeks to sell the shared property, the request must be filed against the other three co-owners.
Competent Court for the Sale Order
The request for obtaining a sale order for shared property must be filed in the court of the place where the property is located.
Method of Enforcing the Sale Order
The sale order for shared property is sent to the enforcement of judgments unit without the need to issue a writ of execution. The enforcement of judgments unit opens an enforcement file and, by lottery, designates a court expert to appraise the property. If the parties do not object to the determined price within a one-week deadline, an auction notice is published. If the property is sold through the auction, the enforcement officer (dadvar), after deducting enforcement and statutory costs, divides the proceeds of the sale of the shared property among the co-owners in proportion to their shares.
A Few Points Regarding the Sale Order for Shared Property
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Although the request for a sale order for shared property is not subject to the formal requirements of the Code of Civil Procedure, most courts accept this request when filed in the form of a petition.
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Since the court's decision regarding the sale order for shared property is not in the form of a judgment (hokm) or an interlocutory order (gharar), but rather an order (dastoor), it is not subject to appeal and does not carry the force of res judicata. So, if the desired outcome -- namely, the sale order -- is not obtained in the lawsuit, the matter may still be litigated again.
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The majority view among the courts is that, after the sale order for shared property is issued, any of the co-owners may submit a request for enforcement of the order and sale of the property; however, some courts hold that only the original requesting party may submit this request.
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If the property is under seizure or is mortgaged, a request for a sale order is not admissible.
Source: Property Litigation, by Hossein Eghdami.