PREVENTING CO-OWNERS FROM USING CO-OWNED (COMMON) PROPERTY

Abstract

The possibility of exercising (co-)ownership rights by every co-owner of (a thing) property is restrained by the fact that each and every co-owner holds the same rights thereto. In real life, it is unlikely that all the co-owners will reach an agreement on the exercise of their ownership rights. Therefore, one can say that the ancient Roman maxim communio est mater rixarium (co-ownership is the mother of disputes) has never lost its sense. Some cases handled by Croatian courts have impelled the Supreme Court of the Republic of Croatia or more precisely, its Civil Law Department to adopt the stance, according to which a co-owner whose exercise of his/her ownership rights was not proportional to his/her fractional interests in the property shall compensate the co-owner who was not in possession of the property for all the benefits derived from such property use. This paper examines the meaning and consequences of the said stance of the Supreme Court for ownership rights-related dispute resolution. It also investigates the possibility of judicial review (second appeal), which depends on the Supreme Court’s permission.  Finally, it sheds light on some pending issues relating to the exercise of ownership rights de lege lata as well as on possible legal solutions and the potential need for intervention by the legislator de lege ferenda.