Siblings inherited the house and one will not sell: what the law says in 7 jurisdictions
Three siblings inherit the family home, one lives in it and refuses to sell. In Italy, France, Germany and Spain nobody can be forced to stay in an undivided estate and any co-heir can demand the split. In England the court decides — and can say no.
The problem
Two or three brothers and sisters have inherited their parents' house. One of them wants to sell and take his share in money. Another has been living in the house for years, will not sell, and pays nothing for being there. Nothing moves: the house cannot be sold without agreement, the one who wants out cannot get his money, and the one inside has no reason to change anything.
What they agree on
Four of the seven jurisdictions answer with almost the same sentence, and they mean it as a principle rather than a rule of convenience. Italian art. 713: 'I coeredi possono sempre domandare la divisione.' French art. 815: 'Nul ne peut etre contraint a demeurer dans l'indivision et le partage peut toujours etre provoque.' Spanish art. 1051: 'Ningun coheredero podra ser obligado a permanecer en la indivision de la herencia', with the identical rule for ordinary co-ownership at art. 400. German § 2032 constructs the estate as joint property of all the heirs and then, through § 2042, gives each of them the right to demand the Auseinandersetzung. In all four, one co-owner acting alone can end the deadlock, without the agreement of the others and without having to give a reason.
All four also distinguish sharply between forcing a sale and forcing a division. Selling the house needs the others; demanding the division does not. The French page makes the distinction explicit — 'provoquer le partage ne suppose rien d'autre que la qualite d'indivisaire' — and the practical route to money runs through the division rather than around it. Where the asset cannot sensibly be split in two, all four then converge again on the same pair of outcomes: the house goes wholly to one co-owner who compensates the others, or it is sold and the price divided. Italian art. 720 assigns an indivisible property preferentially to the co-heir with the largest share and otherwise orders a sale by auction; Spanish art. 404 gives award-with-compensation or sale; German §§ 752 and 753, reached through § 2042(2), give division in kind or otherwise the Teilungsversteigerung; France uses licitation, with attribution preferentielle as the route to keeping the house.
All of them are also expensive and slow, and the pages say so. The Italian and Spanish pages both point out in terms that a judicial division is longer and costlier than a negotiated settlement, and that most of these situations end with the sibling who stays buying out the sibling who leaves. The legal right to force the issue is mainly worth having as the thing that makes the negotiation possible.
Where they part company
| Jurisdiction | What its law does | Why it matters |
|---|---|---|
| Italia | Italy is the only one that quantifies every way the right can be delayed. Art. 713 lets a testator postpone the division until a year after the last-born heir reaches majority, or for a period not exceeding five years from death, with the court able to allow an earlier division for grave circumstances. Art. 1111, for ordinary co-ownership, lets the court grant a delay of up to five years where immediate division would prejudice the others, validates an agreement to stay in common for up to ten years, and reduces any longer agreement automatically to ten. | Italy answers 'can he stall me and for how long' with numbers. Spain answers part of it — art. 400 validates an agreement not to divide for a determinate period not exceeding ten years, 'prorrogable por nueva convencion', which is a real difference from Italy's flat cap since a Spanish agreement can be renewed. France states only that the division may be postponed 'par jugement ou convention' and leaves the duration to those instruments. |
| France | France is the only one of the four that puts the occupation charge into the indivision regime itself. Art. 815-9 states that a co-owner who uses or enjoys the undivided property privately is, absent agreement to the contrary, 'redevable d'une indemnite'. | The sibling living in the house rent-free is half the problem in every one of these families, and only the French code answers it where the reader is already looking. Italy sends the question to the general co-ownership rules and the accounting on division; Spain to the community rules at arts. 392 and following; England handles it through equitable accounting and the s. 13 compensation powers, which s. 15(2) then makes relevant to what the court decides. |
| Deutschland | Germany gives the trapped co-heir an exit the others do not have: he can sell his share of the whole estate. § 2032(2) sends the reader to §§ 2033 to 2041, and § 2033 permits a co-heir to dispose of his share in the estate as a whole — in notarial form — while expressly forbidding disposal of his share in any individual asset. § 2040 requires all the heirs acting together to dispose of an estate asset. | A German co-heir who cannot get the others to move does not have to wait for the Auseinandersetzung; he can sell his Erbteil to an outsider, including a professional buyer, and leave. He cannot sell 'his share of the house' — that is the disposal § 2033(2) prohibits. The distinction is invisible to a non-German reader and it is the whole of the practical answer. |
| German § 2032 makes the estate a joint property in which no heir owns any particular thing. The Nachlass 'wird gemeinschaftliches Vermoegen der Erben'; the share is a share in the whole, not in the car or the savings account. Administration under § 2038 requires joint action, with majority decisions on ordinary administration and each heir permitted to take a measure necessary for preservation. | It explains the deadlock the German family is in more precisely than the other codes explain theirs: nobody can sell the house because § 2040 requires all of them, and nobody can be said to own a slice of it. The block is structural rather than a matter of one sibling being difficult, and the way out is § 2042, not a negotiation over the house. | |
| España | Spain is the only one of the four where the testator may prohibit the division outright — and it then takes the prohibition apart in the same sentence. Art. 1051 allows the exception 'a menos que el testador prohiba expresamente la division', and immediately adds: 'Pero, aun cuando la prohiba, la division tendra siempre lugar mediante alguna de las causas por las cuales se extingue la sociedad.' | A Spanish will can say something an Italian will cannot — Italian art. 713 caps the testator at five years or one year past majority — but what it says is not permanent. The clause a family reads as 'father forbade selling the house' is, on the text, a prohibition with a statutory expiry built into it. |
| United Kingdom | England reaches the problem from the opposite direction and gives the court a discretion the four codes do not. Co-owned land is held on a trust of land; TOLATA 1996 s. 14 lets any trustee, or anyone with an interest in the property, apply for an order 'as the court thinks fit'; and s. 15 lists what the court is to have regard to — the intentions of whoever created the trust, the purposes for which the property is held, the welfare of any minor who occupies or might reasonably be expected to occupy the land as his home, and the interests of any secured creditor of a beneficiary. | This is the single largest divergence in the cluster. In Italy, France, Germany and Spain the answer to 'can he stop me' is no — the timing may be delayed, but the right to divide is not refusable. In England the answer can be no sale, indefinitely, if the purpose of the trust and the welfare of a child living there outweigh the applicant's wish for money. Two identical families get structurally different answers. |
| Section 15 makes the welfare of a minor occupying the property a listed matter — and only that. As the s. 15 page notes, unlike section 1 of the Children Act 1989 this section makes a child's welfare 'a factor to be weighed, not the deciding consideration'. The section is also expressly non-exhaustive: the matters 'include' those set out. | No civil-code article in this cluster lets the presence of a child defeat a division. The closest any of them comes is Italian art. 713, which lets the testator postpone the division until a year after the youngest heir reaches majority — a fixed delay written in advance, not a judicial weighing after the fact. England alone asks a judge to balance a child's home against a co-owner's capital. | |
| In England someone who is not a family member at all can put the house into play. Standing under s. 14 extends to anyone with 'an interest in property subject to the trust', which the s. 14 page identifies as wide enough to include a secured creditor of a beneficiary or a trustee in bankruptcy, and s. 15(1)(d) makes the interests of a secured creditor a listed matter. Where the applicant is a trustee in bankruptcy, s. 15 does not apply at all and the harder test in s. 335A of the Insolvency Act 1986 governs instead. | A sibling's debts can force the sale of the family home in England through a route the four codes do not offer a creditor. It also means an English reader has to identify who is applying before anything else, because the criteria change entirely depending on the answer. | |
| California | Neither American section answers this out of the pages here, and for the same reason in both: the law that governs a deceased person's estate is a separate code. California's is the Probate Code; New York's are the Estates, Powers and Trusts Law and the Surrogate's Court Procedure Act. Neither is in this corpus. | It is a gap in what this comparison can show rather than a finding about American law, and it is worth stating plainly. Both states do have partition procedures for co-owned land, and both have estate administration through a court that has no counterpart in the four civil-law systems, where an estate passes to the heirs directly and is divided among them. |
The provision in each country
Each card links to the page that reproduces the official text and explains it in that country's own language.
Italia Codice Civile
- Art. 713 Codice Civile Co-heirs may always demand the division; a testator may postpone it only to a year past the youngest heir's majority or five years from death, and a court may cut that short.
- Art. 1111 Codice Civile Any co-owner may always demand the dissolution of a co-ownership; the court may delay it up to five years, and an agreement to stay in common binds for at most ten.
France Code civil
Deutschland BGB
España Código Civil
- Artículo 1051 del Código Civil No co-heir may be obliged to remain in an undivided estate unless the testator expressly prohibited division — and even then the division will occur through the causes that extinguish a partnership.
- Artículo 400 del Código Civil No co-owner is obliged to stay in the community and each may demand division at any time; only an agreement for a fixed period of up to ten years, renewable, holds them together.
United Kingdom Trusts of Land and Appointment of Trustees Act 1996
- TOLATA 1996 s. 14 Any trustee of land, or anyone with an interest in the property, may ask the court for an order about the trustees' functions — including sale — or a declaration of the extent of a person's interest.
- TOLATA 1996 s. 15 What the court weighs on a section 14 application: the settlor's intentions, the purposes of the trust, the welfare of a minor occupying the home, and the interests of a secured creditor.
Where there is no answer in the code
A jurisdiction listed here is a finding, not a gap. Either its answer lives outside the corpus — special legislation, case law, municipal rules — or its law simply has no such rule.
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California
In law we don't carry
The Probate Code
Administration of a deceased person's estate in California is governed by the Probate Code, which is not in this corpus, so there is no page to link. The lookup returned nothing with a page. California does have a partition procedure for co-owned real property, but it sits outside the Civil Code sections published here.
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New York
In law we don't carry
EPTL; SCPA
The same: New York's succession law is the Estates, Powers and Trusts Law together with the Surrogate's Court Procedure Act, neither of which is in this corpus. The lookup produced RPL § 240-c, on severing a joint tenancy, which is a different mechanism — it operates between living co-owners and does not address the division of an estate among heirs.
That's the law in seven places. Now let's settle your problem.
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This page compares provisions of several legal systems in general terms and links to the official text of each. It is not legal advice, it does not tell you which country's law governs your situation, and it takes no account of the circumstances of your case. For a live dispute, consult a qualified lawyer in the jurisdiction concerned.