Consent of co-owner needed in sale of land owned in common

Can you buy land that is co-owned and what consent is needed?

In general, each co-owner may sell his proportionate share in accordance with Article 493 of the New Civil Code of the Philippines which states that:

"Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved.

But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership."

Correlative thereto, Article 491 thereof also provides that "[n]one of the co-owners shall, without the consent of the others, make alterations in the thing owned in common, even though benefits for all would result therefrom. "

The consent of the co-owners is necessary in the sale of a definite portion of an undivided land. This finds support in the pronouncement of the Court in the case of Cabrera v Ysaac (GR 166790, Nov. 19, 2014), where the Supreme Court speaking through Associate Justice Marvic M. V. F. Leonen stated that:

"If the alienation precedes the partition, the co-owner cannot sell a definite portion of the land without consent from his or her co-owners. He or she could only sell the undivided interest of the co-owned property. As summarized in Lopez v. Ilustre, "[i]f he is the owner of an undivided half of a tract of land, he has a right to sell and convey an undivided half, but he has no right to divide the lot into two parts, and convey the whole of one part by metes and bounds.

"The undivided interest of a co-owner is also referred to as the 'ideal or abstract quota' or 'proportionate share.' On the other hand, the definite portion of the land refers to specific metes and bounds of a co-owned property.

"Hence, prior to partition, a sale of a definite portion of common property requires the consent of all co-owners because it operates to partition the land with respect to the co-owner selling his or her share. The co-owner or seller is already marking which portion should redound to his or her autonomous ownership upon future partition."

Source: Manila Times