Abstract
The paper reflects on the dissolution of common property owned by many, at the initiative of one of its owners. Firstly, the set of rules pertaining to common property in Icelandic Law is explained. Secondly, the paper describes the authorities of each owner to demand foreclosure of the common property, pursuant to past and present legislation and in light of the case law of the Supreme Court of Iceland. Thirdly, the paper anlyzes the dissolution of common property by means of foreclosure with regard to the constitutional protection of property. Finally, parallels in Danish and Norwegian Law are highlighted for comparative purposes.
The dissolution of common property is generally executed in a manner where ech ownertakes his share of the property, proportionally in accordance with its shareholdings, if possible without incurred damage. The alternative authorizes an owner to initiate foreclosure. Previous case law regarding forced auction set forth conditions where such action was merely applicable if common property was indivisible and its division would lead to significant damage, whereas the burden of proof was subjected on the owner initiating the action. Current legislation restricts the dissolution of common property by means of foreclosure if its division is applicable without incurring significant damage or costs on the owners, whereas the burden of proof is similarly subjected on the owner initiating foreclosure. This process of foreclosure is, furthermore, bound by procedural rules set forth in current legislation, including rules on the duty to mediate dispute on the dissolution of common property, which were enacted in aim of safeguarding the rights of all relevant parties. Finally, foreclosure in the aforementioned context of common property encompasses a restriction of property rights. The legitimacy of this measure is thereby subject to n individual assessment with regard to the principle of proportionality, and is merely applicable as a last resort where other less stringent measures have been tried.
The dissolution of common property is generally executed in a manner where ech ownertakes his share of the property, proportionally in accordance with its shareholdings, if possible without incurred damage. The alternative authorizes an owner to initiate foreclosure. Previous case law regarding forced auction set forth conditions where such action was merely applicable if common property was indivisible and its division would lead to significant damage, whereas the burden of proof was subjected on the owner initiating the action. Current legislation restricts the dissolution of common property by means of foreclosure if its division is applicable without incurring significant damage or costs on the owners, whereas the burden of proof is similarly subjected on the owner initiating foreclosure. This process of foreclosure is, furthermore, bound by procedural rules set forth in current legislation, including rules on the duty to mediate dispute on the dissolution of common property, which were enacted in aim of safeguarding the rights of all relevant parties. Finally, foreclosure in the aforementioned context of common property encompasses a restriction of property rights. The legitimacy of this measure is thereby subject to n individual assessment with regard to the principle of proportionality, and is merely applicable as a last resort where other less stringent measures have been tried.
| Translated title of the contribution | The Dissolution of Common Property by Means of Foreclosure |
|---|---|
| Original language | Icelandic |
| Title of host publication | Afmælisrit : Tryggvi Gunnarsson sextugur 10. júní 2015 |
| Editors | Berglind Bára Sigurjónsdóttir |
| Number of pages | 20 |
| Place of Publication | Reykjavik |
| Publisher | Bókaútgáfan Codex |
| Publication date | Jun 2015 |
| Pages | 69-88 |
| ISBN (Print) | 9789979825869 |
| Publication status | Published - Jun 2015 |
Keywords
- Faculty of Law
- Common Property
- Foreclosure