Owning property with other people often runs into the situation where one of the co-owners starts using the property at the expense of the others. This article analyses when the disadvantaged co-owner acquires a claim to financial compensation, and why the extent of use is measured not merely in square metres but above all by the economic value of the property. You will learn how arbitrary conduct or being outvoted by the majority affects your rights, and why more recent judicial practice protects your money with the longer, 3-year limitation period. In closing, the author explains why an expert's help is crucial when proving excessive use.
Owning a property (a flat, a cottage or land) together with another co-owner brings not only shared joys but occasionally worries too. The ideal state of affairs is where the co-owners agree on everything. But what happens when one of the co-owners starts using the common property more than their share entitles them to?
In legal practice, this state of affairs is called use beyond the extent of the co-ownership share, or "excessive use" of the co-ownership share. Let us look together at when such a situation arises, how the "extent" of use is measured, and what options you have if you find yourself in the position of the disadvantaged co-owner.
For the disadvantaged co-owner to acquire a claim to compensation, certain conditions must be met: active excessive use, i.e. one co-owner actually uses the property beyond their share, and a causal link, i.e. the fact that you are not using the property must be a direct consequence of the other co-owner's excessive use of it. The key to success is proving that you were actually prevented from using it – whether physically (by a change of locks) or legally (by exclusion under a majority decision, by blocking another economic use, and so on).
If no one uses the common property at all, no claim to compensation arises. Nor, generally, does a claim arise where the other co-owner uses only half the house (corresponding to their 50% share) and the other half remains free, with no obstruction to accessing and using it. If you do not use it for any personal reason of your own, even though you objectively could, the court will generally not award you compensation. The reason why you do not use the free part is legally irrelevant. There are, however, numerous exceptions to this proposition, which are beyond the scope of this article.
Many people think the extent of use is calculated purely in square metres. The courts, however, take a more comprehensive view of the problem. In assessing the extent, it is not necessarily the area alone that is decisive (for example, the size of a part of the land), but the utility or economic value of the part being used (Supreme Court of the Slovak Republic, file no. 6 Cdo 184/2010).
In practice, clients often ask whether their claim is affected by whether there was ever any official vote on the use of the property, or whether it is pure arbitrary conduct by one of the co-owners. Let us look at the three most common scenarios:
Very often, excessive use comes about simply because one co-owner moves in, changes the locks and asks no one. The others do not consent to his use of the property. The good news for the disadvantaged co-owner is that the claim to compensation arises even where no vote took place. The courts have clearly confirmed that it is not decisive whether this state of affairs stems from an agreement or is a purely factual state (arbitrary conduct). If someone has actually excluded you from use, they cannot defend themselves by saying "but we never voted on it" (Supreme Court of the Slovak Republic, 27 September 1979, file no. 2 Cz 54/79).
The statute says that decisions on the management of the common property are taken by the co-owners by a majority calculated according to the size of their shares. Imagine that three siblings own a house (two hold 40% each and one holds 20%). The two majority owners (80% together) outvote the minority owner and decide that only one of them will live in the house.
For a vote (a majority decision) to be valid and carry legal weight, it must be a demonstrable process. The statute, however, requires neither a formal meeting nor a written ballot – the decision may also be informal or implied; what matters is that all the co-owners took part in it and that it can be ascertained how each of them voted. The minority co-owner should have a genuine opportunity to express their view, but there is no formal requirement of the "invitation with an agenda" type in any statutorily prescribed form.
The right to use the property forms part of the content of the ownership right. Every single co-owner has it directly by operation of law, no matter how small their share. It therefore need not be voted on separately – no one has to "approve" your being a co-owner with the right to use the property.
The problem arises where there is only one property (for example, a single three-room flat) and three co-owners. Their equal rights then begin to physically crowd each other out. This is exactly where voting comes in. The vote is not about whether you have the right to use the property, but about HOW that right is to be exercised in practice (this is what is known as the management of the common property).
The co-owners thus decide by majority vote on the specific regime of use:
If one co-owner uses the property beyond the extent of their co-ownership share, they must compensate the others, i.e. provide economic counter-value. But what kind of claim exactly is this? Two divergent schools of thought have long existed in our judiciary. The older case law worked with the concept of unjust enrichment, but the more recent settled case law of the Supreme Court of the Slovak Republic proceeds on the basis that this is a distinct claim under § 137(1) of the Slovak Civil Code, not unjust enrichment.
School of thought no. 1 (Unjust enrichment, R 37/1982): This school holds that if a co-owner uses the property beyond the extent of their share without paying compensation, they thereby obtain unjust enrichment. Since they cannot give the housing back, they must provide monetary compensation. On this view, unjust enrichment arises regardless of whether the majority so decided, a court so decided, or it is a factual state (unless the agreement implies that nothing is to be paid). The Supreme Court of the Czech Republic, for example, inclined to this view in the past. The disadvantage is that the claim becomes time-barred within the shorter, generally 2-year subjective limitation period (with a 3- or 10-year objective period).
School of thought no. 2 (A distinct claim under § 137(1) of the Slovak Civil Code, Supreme Court of the Slovak Republic 6 Cdo 184/2010): This school (favoured by the more recent case law of the Supreme Court of the Slovak Republic and the Constitutional Court of the Czech Republic) rejects the characterisation as unjust enrichment. It argues that the entitlement to use the property flows directly from the co-ownership right, and it is therefore not use "without legal grounds". The claim to compensation is thus based directly on § 137(1) of the Slovak Civil Code and is an independent, distinct type of claim arising from the co-ownership relationship. The advantage: the claim becomes time-barred within the standard 3-year limitation period.
What does this mean for you?
If you find yourself in a situation where your co-owner refuses to communicate and is appropriating the utility value of the common property at your expense, the law is on your side. You are entitled to demand financial compensation from them.
Since the legal characterisation of this claim and the proof of the value of the use tend to be complicated in practice, we recommend always addressing such a situation with an expert. At our law firm, we will be glad to help you review your situation, quantify the real value of your claim, and choose the most effective strategy for protecting your co-ownership rights.
