Rules applicable in partition of commonly owned property

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Persida Acosta

Dear PAO,
My brother and I inherited 30 square meters of land where our ancestral house is erected. I am living in the house and my brother has already settled in Taguig City(Metro Manila) with his family since he is already married. Last month, my brother came to me and demanded the partition of our ancestral house. I refused to give in to his demand because if we partition the property, it will result in the destruction of our ancestral house, which has a sentimental value to me. My brother now filed a complaint with barangay (village) authorities, and during our confrontation, I offered to buy his share on installment basis but he refused. He maintained that I should pay him in full because he is in dire need of money. What are my options here?
Brandy

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Dear Brandy,
The general rule that is provided under Article 1082 of the New Civil Code of the Philippines states, “Every co-heir has a right to demand the division of the estate unless the testator should have expressly forbidden its partition, in which case the period of indivision shall not exceed twenty years as provided in Article 494. This power of the testator to prohibit division applies to the legitime. xxx xxxx xxxx”

Based on the this provision, your brother has the right to demand the partition of the property that you co-own. But please be guided by another provision of law that limits the right of the co-owner with respect to the physical division of the subject property, this is found under Article 1086 of the same code which states:

“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 other the excess in cash.

“Nevertheless, if any of the heirs should demand that the thing be sold at public auction and that the strangers be allowed to bid, this must be done.”

In your case, physical division of the thing owned in common cannot be made, because it will impair the property. If partition will proceed, it will be subdivided into smaller lots, which are no longer unfit for construction of a new house. Since you want also to preserve the family’s ancestral home, you may offer your brother to adjudicate to yourself the property subject to the payment of his corresponding share in cash or in installment basis depending on your agreement. Otherwise, it will be sold and the proceeds will be divided among yourselves.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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