We are five siblings, all of legal age. Our parents are already deceased leaving no will. We have an ancestral property in La Union still registered under the name of our parents. My siblings and I are planning to have the property partitioned under extrajudicial process.
Our ancestral home is still intact in that land. How do we go about dividing the land? Do we have to tear down the house before we can proceed with the partition process? Or can we proceed with the partition of the land with the house intact? The problem is that one of my nieces and her family live in the ancestral house. We have asked them to vacate, but they don’t want to. In fact, her father, one of our siblings, doesn’t want them to leave either. The house is the sticking point in our quest for a fair, just and equal distribution of our ancestral land property. Please advice us on how to deal with this issue.
Partition, in general, is the separation, division and as-signment of a thing held in common among those to whom it may belong (Article 1079, Civil Code). The heirs of a deceased who are all of age or minors who are re-presented by their judicial or legal representatives duly authorized for the purpose may divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds. This process of division is called extrajudicial partition and governed under Section 1, Rule 74, Rules of Court.
Before partition, the ow-nership over an undivided thing or right is owned in common by all heirs (Article 1078, Civil Code). But, a co-owner may demand at any time the partition of the said thing owned in common, insofar as his share is con-cerned (Article 494, Civil Code). In the partition thereof, equality shall be observed as far as possible, dividing the property into lots, or assigning to each of the co-heirs things of same nature, quality and kind (Article 1085, Civil Code), However, should a thing be indivisible or would be much impaired by its being divided, it may be adjudicated to one of the heirs, provided he shall pay the others the excess in cash (Article 1086, Civil Code). If the co-heirs could not agree that it be allotted to one of them who shall indemnify the others, it shall be sold and its proceeds distributed (Article 498, Civil Code).
Clearly, the ancestral house and lot cannot be physically divided to you and your siblings because the physical division of the house would make it worthless. The house cannot be demolished in order to partition the land because the house is part of the estate, unless all of your siblings would agree to this. Con-sidering that one of your nieces stays in the house with the consent of her father who is your sibling, you may assign the ancestral house and land to that sibling after he pays the other siblings with their respective shares in cash. If you or one of your other siblings refuses to allot the property to that sibling whose daughter is staying in the house, the said property may be sold and the proceeds distributed equally to all children. Nevertheless, since there is already a disagreement as to the division of the an-cestral property, it would be best to file a petition for partition in court in order to resolve the manner of its partition.
Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have stated. The opinion may vary when other facts are elaborated therein.