Kuwait Court of Cassation principle number 337

Summary: - Termination of co-ownership in undivided shares. Each co-owner has the right to request partition by agreement or judicially. Condition: There must be no considerations calling for compulsory continuation of co-ownership in undivided shares. Compulsory continuation of co-ownership in undivided shares pursuant to a legal transaction may not extend beyond five years. Establishment that partition is detrimental to the co-owners’ interests. The court may order continuation of co-ownership in undivided shares for a period it determines, unless there is an agreement prohibiting partition, or until a date subsequent to the agreed date. - Determining whether immediate partition is detrimental to the co-owners’ interests or not. A matter of fact. Rule: It is established in this Court’s jurisprudence that Article 830 of the Civil Code means that, in principle, each co-owner has the right to terminate co-ownership in undivided shares at any time by requesting partition by agreement or judicially, unless there are considerations calling for compulsory continuation of co-ownership in undivided shares pursuant to law or a transaction. Compulsory continuation of co-ownership in undivided shares pursuant to a legal transaction may not extend beyond five years. In the second paragraph of the aforementioned article, the legislature introduced a measure of flexibility in the co-owner’s right to request partition, on the one hand, and in obliging the co-owner to remain in co-ownership in undivided shares, on the other. It permitted the court, if partition is detrimental to the co-owners’ interests, to order continuation of co-ownership in undivided shares for a period it determines if there is no agreement prohibiting a request for partition, or until a date subsequent to the agreed date. This paragraph was intended—as stated in the explanatory memorandum—to address circumstances that may arise during co-ownership in undivided shares and alter the co-owners’ expectations, in view of the repercussions of good or poor exploitation of property on the economic interest of the community. It is also established that, although determining whether immediate partition is detrimental to the co-owners’ interests or not falls within the authority of the court of fact, this is conditional upon its inference being reasonable and based on what is established in the papers.