Does the judge have the authority to force the heirs to sell the estate's real estate?

Does the judge have the authority to force the heirs to sell the estate's real estate?

Disputes among heirs regarding the fate of inherited properties are increasing, especially when some insist on selling while others strongly oppose it. If one heir files a lawsuit for compulsory division to demand the sale of the properties and the division of the proceeds, while the others refuse and insist on retaining them, to what extent does the judge have authority in this case?

Can he force the heirs to sell despite the opposition of some of them? Or does the law give him other options such as dividing the property or handing over the shares in kind without resorting to selling?

In this article, we will reveal the true limits of the judge’s authority in real estate inheritance division cases, and explain the factors that determine his decision between forcing a sale or being satisfied with handing over the shares without liquidating the real estate.

Abdulaziz bin Yasser Al-Anzi Law Firm 

Does the judge have the authority to force the heirs to sell the estate's properties at the plaintiff's request, or can the plaintiff be given the amount of his share?

Answer: This situation can only take two forms, which are as follows:

First scenario: In case of agreement between the heirs

If the heirs agree to value the plaintiff’s share and pay it in cash without resorting to a public auction, then this agreement is permissible based on Article Three of the Joint Funds Division Regulations issued on 19 Jumada Al-Awwal 1439 AH, which stipulated that “partners with full legal capacity may divide the joint fund in the manner they agree upon, provided that it does not violate Sharia and regulations, and then the agreement shall be submitted to the competent authority for documentation.”

Practical application:

In one judicial precedent, the heirs agreed to divide the money amicably, through the mediation of the judge. This agreement was then adopted and documented after the valuation was carried out by experts, and the shares were distributed based on what was agreed upon. It is worth mentioning that if the agreement is made without resorting to the judiciary, an agreement is drawn up to that effect and is proven at the notary public.

Second scenario: In case of disagreement among the heirs

First: The legal basis for division according to the regulations for the division of joint funds and the civil transactions system.

According to the regulations for the division of jointly owned property, the basic rule when there is a dispute between partners regarding the division of jointly owned property is to carry out a division in kind if possible, and to resort to a public auction only if a division in kind is not possible. This is in accordance with the text of Article Three of the regulations for the division of jointly owned property (partners who are fully competent may divide the jointly owned property in the manner they agree upon, provided that it does not violate Sharia and regulations).

Article 628 of the Civil Transactions Law, in its first paragraph, states: (If one of the partners requests the division of the jointly owned property and the others refuse, and the property is divisible in kind, without this resulting in the disruption of its use or a significant decrease in its value, the court shall divide it. If the division results in either of these, the court shall order the property to be sold at auction.) This shall be done through the court.

Second: Legal procedures in case of inheritance dispute

1- If division in kind is possible:

If it is found that the real estate is divisible in kind so that each partner gets his share without causing significant harm to the rest of the partners, then the judge is obligated to carry out the division in kind, and the plaintiff has no right to demand that all the real estate be sold at public auction, because the sale is considered an alternative solution.

2- In case of in-kind division being impossible:

If it is proven that the real estate cannot be divided in kind due to its nature or because of the significant harm that may befall the partners, the judge shall order the real estate to be sold at public auction and the proceeds of the sale to be distributed according to the shares of the heirs.

Therefore, it is not permissible to rule in court that the plaintiff should be given the price of his share, except by agreement. In several precedents, the court has been keen to urge the parties to value the share and deliver it to the plaintiff by agreement.

Third: The plea to reject the plaintiff's request to sell the properties

Therefore, we recommend that the defendants argue for the rejection of the plaintiff’s request to sell the properties directly, based on the provisions of the regulations and the Civil Transactions Law, which obligate the judge to first verify the possibility of in-kind division. If it is divisible in-kind, then the plaintiff’s request to sell it is worthy of rejection, because it contradicts the regulatory procedures stipulated in the regulations for the division of joint funds.

We always recommend having an experienced real estate lawyer who is capable of providing an appropriate response to such lawsuits.

Fourth: Reliance on the Sharia legal system

It is known that the defendants have the right to submit any incidental request that would lead to the plaintiff not being awarded a judgment in accordance with Article (84) of the Sharia Procedures Law, such as demanding that he be given the price of his share, or that the real estate is divisible in kind. This request is considered valid because it achieves a legitimate interest for the rest of the heirs, and it is in line with the regulations for dividing joint funds.

Fifth: The result

In the event of an agreement between the heirs: the properties are divided amicably after the plaintiff’s share is appraised and paid in cash, and his share is transferred to the one who paid the price, and the agreement is documented with the competent authority.

In case of disagreement between the heirs: If the real estate is divisible in kind, the judge rejects the plaintiff’s request to sell the real estate and orders the division in kind to take place.

If physical division is not possible: the judge shall order the sale of the real estate at public auction and the distribution of the proceeds according to the shares of the heirs.

Summary:

The plaintiff's request to sell the properties directly is not acceptable because it is premature, unless a physical division is impossible.

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