Kuwait Court of Cassation principle number 338

Summary: - A co-owner in undivided ownership. The general rule is that he has the right to terminate the state of undivided ownership at any time, by agreement or judicially. Exception: the existence of considerations calling for compulsory continuation of that undivided ownership pursuant to law or a disposition. Compulsory continuation of undivided ownership pursuant to a legal disposition for a term exceeding 5 years is impermissible. Article 830/1, Civil Code. - Partition becoming detrimental to the co-owners’ interests. Its consequence: the court may order continuation of undivided ownership for a period it determines where there is no agreement prohibiting a request for partition, or until a date subsequent to the agreed term. Article 830/2, Civil Code. - Inferring the existence or absence of detriment to the co-owners’ interests from immediate partition is for the trial court. Condition: its inference must be reasonable and based on what is established in the case papers. Example. - The appellant’s insistence, in his capacity as Director-General of Minors’ Affairs, on continuing undivided ownership because partition would cause serious harm to the female minor, and his substantiation thereof with documents. The judgment nevertheless ordering termination of undivided ownership on grounds that neither address this defence nor constitute an adequate response to it. This vitiates the judgment and requires its cassation. Rule: It is established in this Court’s jurisprudence that a defence capable of changing the outcome of the case is a material defence which the trial court must address and express its opinion upon in a manner that addresses that defence. It is also established that the purport of Article 830 of the Law of the Civil Code is that, as a general rule, every co-owner has the right to terminate the state of undivided ownership at any time by requesting partition by agreement or judicially, unless there are considerations calling for compulsory continuation of undivided ownership pursuant to law or a disposition. Compulsory continuation of undivided ownership pursuant to a legal disposition for a term exceeding 5 years is impermissible. In the second paragraph of the aforementioned Article, the legislature introduced some flexibility concerning the co-owner’s right to request partition, on the one hand, and compelling the co-owner to remain in undivided ownership, on the other. It permitted the court, where partition is detrimental to the co-owners’ interests, to order continuation of undivided ownership for a period it determines if there is no agreement prohibiting a request for partition, or until a date subsequent to the agreed term. The trial court, by virtue of its unreviewable authority to ascertain and understand the facts of the case, may infer the existence or absence of detriment to the co-owners’ interests from immediate partition, provided that its inference is reasonable and based on what is established in the case papers. That being so, the appellant maintained, in his defence set out in the ground of challenge, that the state of undivided ownership should continue because immediate partition through sale of the property by public auction would harm one of the female minors who had been under his guardianship. He substantiated this by the documents submitted in the proceedings before the trial court, indicating that the female minor / ..... resides in the property in dispute that is subject to partition and has not yet attained majority, as established by the copy of the application for determination of the heirs of the deceased / ........., which states that the said female minor was born on 29/1/1995, particularly since her share of the property’s price would not suffice to purchase a house for her residence. This necessitates continuation of undivided ownership to avert detriment to the appellant resulting from partition. Since the challenged judgment departed from this view and ordered partition of the property to terminate undivided ownership by selling it at public auction, on the basis that termination of undivided ownership does not affect the common interest of the two parties, which neither addresses the appellant’s defence nor constitutes an adequate response to it, it is vitiated in a manner requiring its cassation.