Kuwait Court of Cassation principle number 436

Summary: - Termination of co-ownership in undivided shares. Every co-owner has the right to request partition by agreement or through the courts. The condition thereof: there must be no considerations calling for compulsory continuation of co-ownership. Compulsory continuation of co-ownership pursuant to a juridical act for a term exceeding 5 years is impermissible. If partition is established to be detrimental to the co-owners’ interests, the court may order continuation of co-ownership for a period it specifies, unless there is an agreement prohibiting partition, or until a date later than the agreed date. - Inferring whether immediate partition is detrimental to the co-owners’ interests, or finding that it is not, is a matter of fact. Rule: It is established in this Court’s jurisprudence that the import of Article 830 of the Civil Code is that, in principle, every co-owner has the right to terminate co-ownership at any time by requesting partition by agreement or through the courts, unless there are considerations calling for compulsory continuation of co-ownership pursuant to law or a juridical act. Compulsory continuation of co-ownership pursuant to a juridical act for a term exceeding 5 years is impermissible. In the second paragraph of the aforementioned Article, the legislature introduced a degree of flexibility regarding the co-owner’s right to request partition, on the one hand, and the obligation of the co-owner to remain in co-ownership, on the other. It authorized the court, if partition is detrimental to the co-owners’ interests, to order continuation of co-ownership for a period it specifies if there is no agreement prohibiting a request for partition, or until a date later than the agreed date. This paragraph was intended—as stated in the explanatory memorandum—to address circumstances that may arise during co-ownership and alter the co-owners’ expectations, in view of the repercussions that good or bad exploitation of property has on the economic interests of the community. It is also established that, although inferring whether immediate partition is detrimental to the co-owners’ interests, or finding that it is not, falls within the authority of the court of merits, this is conditional upon its inference being sound and based on what is established in the papers.