Zajednički dom i bivši partner koji odbija prodati: što možete učiniti?

If your ex refuses to sell the home you own together, you can ask the court to order the division of the house. That can mean a sale to a third party, a public auction or allocation of the house to one of you against payment. Under Article 3:178 of the Dutch Civil Code (BW), no co-owner can be forced to stay in co-ownership indefinitely; the main exception is that the court can block the division for up to three years at a time when an immediate division would seriously harm one party’s interests.

Where the co-owners cannot agree, Article 3:185 BW allows the court to determine the division itself: by allocating the house to one of you against payment of the other’s share, by ordering a sale and dividing the net proceeds, or by another method. Under Article 3:300 BW, the court can also rule that its judgment takes the place of the cooperation your ex refuses to give.

Two practical problems run alongside the legal question. The first is the mortgage: a co-owner who wants to be released from joint and several liability needs the lender’s consent, and the lender only gives it if the partner who stays can carry the mortgage on his or her own income. The second is the interim period: mortgage interest, municipal taxes and possibly a compensation for exclusive use keep accruing, and are settled in the division.

Zašto bivši partner odbija surađivati ​​u prodaji?

Obično zbog emocionalne vezanosti, financijskih briga ili taktika u širem razdvajanju. Razumijevanje razloga pomaže vam odabrati pristup koji će najvjerojatnije funkcionirati.

The deadlock is more than an emotional strain. As long as the existing mortgage counts against your borrowing capacity, a bank will usually not grant you a new mortgage, so you cannot buy a new home. In our practice, a refusal usually comes from one of these issues:

• Emocionalna vezanost: letting go of the house feels like a final admission that the relationship is over.
• Financijske brige: your ex fears that he or she cannot afford a new home alone and postpones facing that.
• Strateško neslaganje: disputes about the asking price, the estate agent or the timing used as leverage in the divorce or the division of other assets.
• Sporovi oko održavanja: refusing to contribute to repairs needed before the sale, which affects the value.

Koja su vaša zakonska prava kao suvlasnika?

In all cases, you can demand division under Article 3:178 BW. How the house is divided depends on how you owned it: through a community of property in marriage or registered partnership, under a prenuptial or cohabitation agreement, or simply as co-owners on the title deed.

The right to demand division can only be excluded by agreement for a maximum of five years at a time (Article 3:178(5) BW). A stalemate is therefore never the final answer: if you cannot agree, the court decides. For more background, read our article on podjela imovine unutar i nakon braka.

Kako vaš bračni status određuje vaša prava?

Marriages concluded from 1 January 2018 without a prenuptial agreement fall under the limited community of property; older marriages in principle under the full community of property. The table shows how this typically affects the house.

Kako pregovaranje i medijacija mogu prekinuti zastoj?

Start with a concrete written proposal and, if that does not work, mediation. Both are faster and cheaper than proceedings that can take months, and an agreement can be made binding in a settlement agreement (vaststellingssovereenkomst, članak 7:900 BW).

Send your proposal by registered letter (preporučeno pismo) or email, so you can later show the court that you made reasonable attempts. State calmly that you want to end the co-ownership and include:

• a proposed estate agent, or a fair method for choosing one together;
• an asking price based on a valuation by an independent, registered valuer;
• a timeline for putting the house on the market, for example within four weeks;
• an alternative: your ex takes over the house, with a deadline for a financing statement from a bank.

If direct negotiation fails, a mediator can guide you both to a solution. Mediation is confidential and allows a more open conversation about the real obstacles, such as financial worries. Bring the mortgage statements, valuations and proof of costs you paid yourself. Read more about our profesionalne usluge posredovanja. If you are divorcing, the agreements can also be included in the divorce settlement agreement (pravna konvencija), which the court can attach to its decision.

Koje pravne korake možete poduzeti ako vaš bivši partner ne želi surađivati?

You can ask the court to order the division of the house under Article 3:185 BW and to rule that its judgment replaces your ex’s cooperation. In urgent cases, summary proceedings (kratki pregled) su ponekad moguće.

How do division proceedings work?

You ask the court to determine how the house is divided: allocation to one of you against payment of the other’s share, a sale with division of the net proceeds, or another method (Article 3:185(2) BW). The court weighs the interests of both parties and the public interest.

If you are divorcing, you can ask the court to decide on the division in the divorce proceedings or in separate proceedings afterwards. If you were not married, you start separate proceedings at the district court (sud), with a lawyer. If one of you wants to take over the house, the court looks at whether that person can finance it and pay out the other; if not, a sale is usually the outcome.

Može li sudska presuda zamijeniti potpis vašeg bivšeg partnera/partnerke?

Yes. Under Article 3:300 BW, the court can rule that its judgment takes the place of your ex’s signature on the sale agreement or the transfer deed, and can authorise you to instruct the estate agent and sign the documents yourself.

A judge does not grant this lightly. You must show that you made reasonable attempts to reach agreement, for example with your written proposals and a valuation report, and that the refusal is not justified.

Kada je skraćeni postupak opcija?

Only when there is real urgency. The preliminary relief judge (predložak) can order your ex to cooperate with a sale within weeks, but is cautious, because a sale cannot be undone.

Urgency exists, for example, when the mortgage payments can no longer be made and the bank is about to sell the house at auction, or when your ex refuses to sign a sale agreement with a buyer you have already found. Without such urgency, the judge will refer you to ordinary division proceedings.

Može li sud odrediti uvjete prodaje?

Yes. To prevent your ex from blocking each step, you can ask the court to determine:

• the estate agent or valuer who handles the sale;
• the asking price and minimum price, usually based on an independent valuation;
• a timetable for putting the house on the market and accepting offers;
• cooperation with viewings, with a penalty payment (kazna) for each breach if your ex lives in the house.

What should you check if you want the house sold?

Your position in court depends on a well-documented file. Check that you have:

• the title deed and any prenuptial or cohabitation agreement showing the ownership shares;
• a recent valuation by an independent valuer, or several estimates by estate agents;
• mortgage statements and proof of who paid the mortgage, municipal taxes and insurance;
• copies of your written proposals and your ex’s responses;
• whether you can claim a compensation for use if your ex lives in the house alone.

What should you check if you want to keep the house?

A takeover only works if you can pay out your ex and the bank accepts you as sole borrower. Check:

• whether a bank will give you a financing statement for the mortgage on your income alone;
• the value of the house and the amount you must pay your ex for his or her share;
• whether the lender will release your ex from joint and several liability;
• whether your prenuptial or cohabitation agreement contains a takeover clause or a price formula;
• whether you owe your ex a compensation for exclusive use during the interim period.

What are the financial consequences while you wait and after a sale?

The mortgage and the costs of ownership continue during the dispute, and the value of the house can rise or fall. Who paid what is settled in the division.

Under Article 3:172 BW, the costs of ownership are in principle borne in proportion to your shares; the partner who lives in the house pays the costs of use, such as energy and water. Towards the bank, you both usually remain jointly and severally liable: if one of you stops paying, the bank can claim the full amount from the other, and arrears can be registered with the Dutch credit registration office (BKR).

• Mortgage interest and repayments: in principle shared; payments one of you makes alone lead to a settlement claim.
• Municipal property tax (OZB) and insurance: ownership costs, shared whoever lives in the house.
• Potrebni popravci: a leaking roof, for example, preserves the value for both of you, so the costs are in principle shared.

If one partner has exclusive use of the house, the other can in some cases claim a compensation for use (korištenje). Whether that succeeds depends on the circumstances and on when you asked for it, so raise it early and in writing.

Kako se dijeli prihod?

Javni bilježnik (javni bilježnik) handling the transfer first repays the mortgage, then pays the estate agent’s commission and other sale costs, and then distributes the balance according to your instructions or the court’s decision.

The balance is divided in line with your ownership shares and any settlement claims for costs one of you paid alone. If the proceeds are lower than the mortgage debt, a residual debt (ostatak škole) remains, for which you both usually remain liable towards the bank.

What can we do for you with a shared home your ex will not sell?

Naši obiteljski pravnici assist former spouses and partners from the first proposal to the court’s decision. We can:

• review your title deed, prenuptial or cohabitation agreement and determine your ownership share;
• draft the written proposal to your ex, with a valuation, an estate agent and a timeline;
• record agreements in a settlement agreement or your divorce settlement agreement;
• calculate the settlement claims for mortgage payments, costs and any compensation for use;
• start division proceedings under Article 3:185 BW and ask for a judgment replacing your ex’s signature;
• assess whether summary proceedings are possible when a forced sale by the bank is imminent.

Rezime

• Nitko ne može biti prisiljen ostati u suvlasništvu: svaki suvlasnik može zahtijevati podjelu prema članku 3:178 BW.
• Započnite s pisanim prijedlogom i medijacijom; sporazum se može zabilježiti u obvezujućem sporazumu o nagodbi.
• Ako to ne uspije, sud može naložiti prodaju ili dodjelu prema članku 3:185 BW i odlučiti da njegova presuda zamjenjuje suradnju vašeg bivšeg partnera (članak 3:300 BW).
• Preuzimanje zahtijeva da partner koji ostaje može sam nositi hipoteku i da zajmodavac oslobodi drugog.
• Vodite evidenciju svih plaćanja: troškovi, hipoteka i svaka naknada za korištenje podmiruju se u odjelu.

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