When You Should Get Advice
- Our parents' apartment is in the joint names of three siblings, and one refuses to sell
- My brother moved into the inherited house alone and pays nothing for using it
- Property tax and maintenance fees keep going out, but the sale has been stuck for years
- We siblings do not know how to divide a single plot of rural land
- My sibling says they will sell their share to a stranger
Relevant Laws
Civil Act (민법) Article 1013 (Division by agreement)
Co-heirs may divide the estate by agreement at any time, and if they cannot agree, the court divides it, applying Article 269 on the method of partitioning co-owned property.
Civil Act Article 265 (Management and preservation of co-owned property)
Matters concerning the management of co-owned property are decided by a majority of the co-owners' shares, and each co-owner can carry out acts of preservation alone.
Civil Act Articles 268 and 269 (Claim for partition and method of partition)
A co-owner may claim partition of the co-owned property, and if there is no agreement, may ask the court. If the property cannot be divided in kind, or dividing it is likely to greatly reduce its value, the court may order an auction.
Statutes are summarized. The official Korean text is available at the Korea Law Information Center (law.go.kr).
Before Division, Go to the Family Court
If the heirs have not yet agreed on a division, you cannot single out one house and file a lawsuit for partition of co-owned property (공유물분할). The Supreme Court has held that in this case you can only ask the family court for an adjudication on division of the estate (상속재산분할) (Supreme Court Decision 2015다18367 of August 13, 2015). This is so even if the property has been registered in statutory shares.
In an adjudication on division of the estate, the court looks not only at that house but also at deposits, other real estate and lifetime gifts together, and decides who gets what. It may give the house to one person and have them pay the other siblings the difference in money, or have it sold and the proceeds divided.
Co-ownership After Division: A Partition Lawsuit
Once the siblings have agreed on joint ownership, or the shares have been fixed by adjudication, it becomes an ordinary co-ownership. You then file a lawsuit for partition of co-owned property, and for apartments or small plots of land that are hard to divide, the judgment often orders a sale by auction with the proceeds divided by share.
Because an auction may sell below market price, the case is sometimes settled during the lawsuit by one person buying the other siblings' shares. Applying for a provisional injunction prohibiting disposal of the other side's share before the lawsuit prevents that share from passing to a third party in the meantime.
If One Person Is Using It Alone
Each co-owner may use the whole of the co-owned property in proportion to their share (Civil Act Article 263). If one sibling is using the house alone beyond their share, the other siblings first consider claiming a usage fee for their share as unjust enrichment.
However, under a Supreme Court en banc decision, a sibling with a minority share cannot demand that another sibling with a minority share hand over the entire house. Instead, they can demand that the other stop preventing shared use (Supreme Court en banc Decision 2018다287522 of May 21, 2020). Also keep in mind that decisions on management, such as renting the house out, can be made by a majority of the shares.
How We Resolve Joint Ownership
- 1
Before or after division
We look at the cause of registration and whether there is a division agreement, and first determine whether you are at the division of the estate stage or in ordinary co-ownership.
- 2
Market value and current use
We organize market price data, who actually lives there, and who has paid the taxes and maintenance fees.
- 3
Considering a provisional injunction
If the other side may sell or mortgage their share, we first apply for a provisional injunction prohibiting disposal or an interim measure (사전처분).
- 4
Mediation, adjudication or a lawsuit
Before division, we pursue mediation and adjudication in the family court; after division, a partition lawsuit and a claim for a usage fee.
- 5
Sale and settling shares
Depending on the outcome, we complete the purchase of shares, or the sale or auction and the distribution of the proceeds.
Lawyers handling these cases
Hansol Kim Managing Partner
Former prosecutor at the Incheon District Prosecutors' Office, the Ansan Branch of the Suwon District Prosecutors' Office and the Hongseong Branch of the Daejeon District Prosecutors' Office
View profile →
Miso Kim Partner
Formerly at Daehwan Law Firm, in-house counsel on the legal team of Wemade Co., Ltd., and Oracle Law Firm
View profile →
Frequently asked questions
Does a partition lawsuit always end in an auction?
No. The court orders an auction when the property cannot be divided in kind or dividing it would greatly reduce its value. Property that is hard to divide, such as a single apartment, often goes to auction, but cases are also settled by one person buying the other shares.
What happens if my sibling sells their share to someone else?
A co-owner is free to dispose of their share, so there is little legal basis for stopping it (Civil Act Article 263). The buyer becomes a new co-owner and may file for partition, so if a dispute seems to be starting, consider a provisional injunction prohibiting disposal. If the estate has not yet been divided, you can also apply for an interim measure together with the request for division.
I live in the house and have paid the property tax and maintenance fees. Can I be reimbursed?
Co-owners bear management costs and other obligations in proportion to their shares (Civil Act Article 266), so if you paid other siblings' shares, you can ask for reimbursement. On the other hand, they may argue that you should pay a usage fee for the benefit of living there alone, so the two need to be calculated together.