Partition action: division in kind or sale

Co-ownership usually arises without any dispute: siblings inherit a house, a couple buys a plot of land together, a community of heirs remains undivided for years. As long as everyone agrees, nobody notices that co-ownership is a compulsory community. It becomes noticeable when one wants out and the others do not.

For this case the law knows two routes – and it has a clear order of precedence between them.

Anyone can demand dissolution

The basic norm is § 830 of the Austrian Civil Code (ABGB). It dates from 1812, and its wording shows it (here in translation):

Every co-owner is entitled to insist on the rendering of accounts and on the distribution of the proceeds. As a rule, he may also demand the dissolution of the community; but not at an inopportune time, or to the detriment of the others.

The right to dissolution is thus the rule, not the exception. Nobody has to remain in a co-ownership community, and nobody has to justify why they want out. The size of the share is irrelevant for this – even a one-tenth share carries this right.

The limit lies in the final words: inopportune time (Unzeit) and detriment of the others. Both must be proved by the co-owner who resists the division. And neither leads to the division being cancelled – it leads to it being postponed, as the statutory text itself says: the party seeking division must accept a postponement that is appropriate to the circumstances and not reasonably avoidable. So whoever objects that the house has only just been renovated or that the market is currently poor gains time, nothing more.

The law prefers division in kind

Division in kind (Realteilung) means dividing the thing itself: one plot becomes two, each side receives one. Judicial sale (Zivilteilung) means auctioning the thing and distributing the proceeds according to the shares.

Which variant applies is decided by § 843 ABGB (again in translation):

If a common thing either cannot be divided at all, or cannot be divided without a considerable reduction in value, it is to be sold by judicial auction – even if only one co-owner demands it – and the purchase price is to be distributed among the co-owners.

The sentence is worded as an exception, and precisely therein lies its message: the judicial sale only comes into play where division in kind is not possible or would only be possible with a considerable loss of value. Physical division is the statutory rule; the auction is the route of last resort.

This order of precedence has an immediate practical consequence for the conduct of proceedings: whoever sues for judicial sale must set out and prove why division in kind is ruled out. That is not a formality but frequently the actual point of dispute in the proceedings.

When division in kind is ruled out

Two hurdles must be cleared, one under civil law and one under public law.

Under civil law it is not enough that the area can be halved arithmetically. The divided parts must roughly correspond to one another – in location, character and value. The classic case of failure is the built-up property: if a house stands on the plot, a division would create a built-up piece on one side and an unbuilt piece on the other. Compensation in money is conceivable, but only within narrow limits; the larger the necessary equalisation payment, the more likely division in kind is impracticable. The situation is similar with steeply sloping terrain, with an unfavourable layout, or where one part would be left without its own access.

Under public law the division must be permissible: zoning, suitability as a building plot, minimum sizes, servicing and access. A division proposal that produces an unbuildable residual area is worthless – even if it looks elegant under civil law. The division is subsequently implemented through a division plan and registration in the land register.

Hence: the review of divisibility under public law belongs at the beginning, not at the end. Whoever discovers only after the judgment that the municipality will not permit the division has conducted proceedings that achieve nothing.

The third route: division through condominium ownership

If physical division fails because of the building, the auction is not yet inevitable. The Condominium Act knows a middle way: the court can dissolve the community by creating condominium ownership (Wohnungseigentum) in the property (§ 3 para 1 no 3 WEG 2002). Each co-owner then receives the exclusive right to a specific unit – for instance one flat each in a house with two separate residential units.

The Austrian Supreme Court treats this as a special form of division in kind, and it has the same precedence over the judicial sale. If the creation of condominium ownership is possible and practicable, it takes priority over the auction – even against the will of a co-owner. That the parties are at loggerheads changes nothing.

The precondition is that sufficient self-contained units of roughly equal character exist, or can be created without disproportionate effort, and that the shares permit an allocation proportionate to them. This is where it frequently fails in practice: a dwelling house and a workshop hall on the same property are not of equal kind in terms of zoning, fit-out and possible use. Whoever sues for judicial sale must therefore also set out why this route is ruled out.

The partition action

If the co-owners cannot agree, the court decides. § 81 of the Court Jurisdiction Act (Jurisdiktionsnorm, JN) expressly names the partition action (Teilungsklage): it belongs before the court in whose district the immovable property is situated. All other co-owners must be sued – including those who do not oppose the division.

The value in dispute is based on the value of the property and is stated in the statement of claim. It determines the competent court, the court fees and the cost risk. With real property these are substantial amounts – a realistic cost estimate therefore belongs at the beginning of every partition dispute, not in the middle of the proceedings.

The claim is for dissolution of the co-ownership community. The claim need not contain a specific division proposal – but whoever seeks division in kind should submit one anyway, and the reason lies in who decides the "how". If the claim contains a proposal, the court cannot decline to hear and rule on it; if it considers the proposal wrong, it does not dismiss the claim but orders the division it itself considers appropriate. If there is no proposal, the court may confine itself to the relief sought and leave implementation to an out-of-court agreement or to the enforcement judge under § 351 EO. Whoever seeks judicial sale must set out the impracticability of division in kind. In both cases an expert opinion is the rule: on value, divisibility and the effects of the proposed division.

The defendant can defend with the objection of inopportune time or of detriment, with an agreed continuation of the community – the waiver of partition (Teilungsverzicht) – or, where the claim is for judicial sale, with proof that division in kind is in fact possible – including through condominium ownership.

Two misconceptions about the waiver of partition persist stubbornly. It does not bind a later acquirer by virtue of standing in the land register – what can be noted in the land register is the use regulation (§ 828 para 2 ABGB), not the waiver of partition. It passes to a singular successor only if that successor expressly assumes it; for heirs, § 831 ABGB says so itself: the obligation "does not extend to the heirs unless they themselves have consented to it". And it need not be limited in time from the outset: it binds for as long as the purpose of the agreement requires, and it can be terminated early for important reasons.

Who has to prove what

The burden of proof in a partition action is split, and the split often decides the outcome:

• The claimant must establish their co-ownership. A claim for division in kind need not contain a specific division proposal – if the court considers the proposed route wrong, it orders the division it itself considers appropriate. A worked-out proposal nevertheless remains the most effective way to steer the outcome.
• Anyone suing for sale by auction bears the burden of pleading and proving that division in kind is impossible or impracticable. That includes showing why the creation of condominium ownership is ruled out as well.
• The defendant bears the burden of proof for everything that stands against division: an inopportune moment, disadvantage to the others, an agreed waiver of partition. If, against a claim for sale by auction, the defendant objects that the property can in fact be divided in kind, no burden of proof attaches to that objection – it is again for the claimant to prove that even the defendant's specific division proposals are impracticable.

Suing for sale by auction is therefore the harder case to run: it requires proof of a negative. A valuation report alone will not do – the report has to establish the impracticability.

What a partition action costs

The question comes up in every first consultation. It has three parts – the court fee, the lawyer's fees and the expert report – and only the first can be quantified in advance.

What the court fee is calculated on

The flat fee under Tariff Item 1 GGG depends neither on the purchase price nor on a valuation report, but on the basis of assessment laid down by the court fee legislation. For immovable property, § 15(1) GGG starts from three times the assessed value for tax purposes (Einheitswert). In practice, however, the figure to work with is usually the market value, and the statute says why: the market value takes the place of the threefold assessed value where the party liable proves that it is lower – and equally where no assessed value has been determined for the property at all. The second case is the more common one.

Anyone estimating the fee should therefore work from the market value and only then check whether an existing assessed value brings it down. Done the other way round, the estimate comes out too low as a matter of course.

The bands are fixed. The amounts are raised by regulation; the following have applied since 1 August 2026 (BGBl. II No. 227/2026):

• over EUR 7,000 up to EUR 35,000: EUR 1,030
• over EUR 35,000 up to EUR 70,000: EUR 2,023
• over EUR 70,000 up to EUR 140,000: EUR 4,048
• over EUR 140,000 up to EUR 210,000: EUR 6,074
• over EUR 210,000 up to EUR 280,000: EUR 8,098
• over EUR 280,000 up to EUR 350,000: EUR 10,123
• over EUR 350,000: 1.2 % of the amount in dispute plus EUR 7,908

The fee is payable with the claim and covers the first instance. Two reductions are worth real money: if the claim is withdrawn before it is served on the other side, only a quarter is due. If it is withdrawn after service but before or at the first hearing, or if the matter is settled there, only half is due – amounts already paid in excess are refunded. A settlement at the first hearing is therefore not only quicker, it also brings back half the court fee.

Lawyer's fees and the expert report

Lawyer's fees follow the Lawyers' Tariff Act, and the basis is the amount in dispute. For valuing that amount, § 4 RATG refers to §§ 54 to 59 of the Court Jurisdiction Act – not to § 60 JN and not to the valuation rule of the court fee legislation. The basis for the lawyer's fees and the basis for the court fee can therefore diverge; only a calculation on the actual case is reliable, and we draw it up before the claim is filed, not afterwards.

An expert report is the norm in a partition action and the largest variable item. The court orders an advance on the costs from the party leading the evidence. What it costs depends on the brief: a valuation is considerably cheaper than a division proposal that works through several options and quantifies their effect on value.

Who bears the costs in the end

In the proceedings, § 41 ZPO applies: a party who is entirely unsuccessful reimburses the other side's necessary costs. In a partition action that rule has a catch worth knowing before the claim is filed. All the other co-owners have to be sued – including those who have no objection to the division. But a defendant who has given no cause for the claim and acknowledges it at the first opportunity is entitled to have their costs reimbursed by the claimant under § 45 ZPO. The peaceable co-owner therefore costs the claimant money although they dispute nothing. Anyone who wants to avoid this obtains written consent before filing.

In the subsequent enforcement proceedings the opposite applies. § 74 EO – the rule under which the party subject to enforcement bears the costs – is expressly excluded there (§ 351(3), and for the auction via § 352 no. 6 EO). Cash outlays are apportioned among the parties in proportion to their co-ownership shares; anyone who has advanced more than their share is reimbursed the excess on request, to the extent it was necessary to realise the right. In enforcement there is thus no winner on costs – everyone pays, according to shares.

How long it takes

There is no reliable average duration for partition actions; anyone who names one is guessing. What can be said is where the time goes – and that this may be three sets of proceedings, not one.

The proceedings on the merits, that is the partition action itself, depend almost entirely on the expert report. Most of the time passes before the expert is appointed, the site inspected, the report delivered and both sides heard on it. Supplementary reports or a second expert double that stage. Only then comes the judgment, against which an appeal and, in some circumstances, a further appeal are available.

The enforcement proceedings begin only once the judgment is final: division in kind under § 351 EO or the auction under § 352 EO. Each is a separate set of proceedings with its own hearings.

The distribution of the proceeds is the stage almost nobody plans for. The highest bid is distributed as the parties agree – and if they do not agree, the court decides on it after an oral hearing by judgment (§ 352c EO). The dispute over the property then turns into a second action over the money.

The consequence is uncomfortable but clear: in a contested case, the distance between "I want out" and "the money has been distributed" is measured in years, not months. That is the strongest argument for an agreement – and the reason why the prospect of the proceedings often achieves more than the proceedings do.

Enforcement

A partition judgment does not implement itself. It is an enforceable title, and its implementation runs under the Enforcement Act (Exekutionsordnung, EO).

For division in kind, § 351 EO has the physical division carried out by a judicial officer of the enforcement court, with the involvement of the parties and having regard to the partition provisions of the ABGB.

For the judicial sale, § 352 EO orders the auction of the common property. It essentially follows the rules of the forced sale, with characteristic deviations: the rights and duties of both the enforcing and the obligated party fall on all co-owners, and holders of pre-emption rights must be notified and invited to the auction.

Three points from § 352a EO are economically decisive:

• The minimum bid is the appraised value. The auction conditions may deviate from this, but must not fall below three quarters of the appraised value. The proceeds can therefore be well below what a private sale would have achieved.
• An appraisal can be dispensed with if the co-owners agree on a starting price beforehand. That saves cost and time – and is one of the few points at which co-owners at odds can still gain something together.
• Rights in rem remain in place and must be assumed by the successful bidder, even where the highest bid does not cover them. Easements, rights of residence and a registered right of repurchase do not disappear through the auction. Whoever believes the judicial sale clears away such encumbrances is mistaken – and whoever has an encumbered property auctioned must expect this to be reflected in the highest bid.

The remaining course follows that of a forced sale: valuation, auction notice, auction date, award, distribution. Two departures carry weight here.

Holders of rights in rem are not parties to the proceedings (§ 352 no. 4 EO). They are not heard, not summoned, and orders are not served on them – the other side of the fact that their rights survive the auction in any event. The holder of a right of pre-emption, by contrast, must be notified and summoned to the auction date (§ 352 no. 3 EO).

If the auction date passes without a bid, the proceedings are not over. The court then sets a period of four to eight weeks within which written offers may be submitted in a sealed envelope – and those offers may fall short of the appraised value by a quarter (§ 352b nos. 3 and 4 EO). The judge opens the envelopes at a public hearing; whoever has made the highest offer is required to lodge the deposit within 14 days and is then awarded the property. In commercial terms: the floor is not the appraised value after all, but three quarters of it.

Incidentally, co-owners may bid at the auction themselves. For the one who actually wanted to keep the property, this is often the only remaining route – but at a price now set by the market and no longer by the family.

The sober conclusion

The judicial sale is an effective means of pressure and a bad deal. It takes time, it costs expert opinions and court fees, and it rarely achieves the price that a calmly prepared sale would have brought. Its real value usually lies in the fact that the prospect of it brings the parties to the table.

Before any action it is therefore worth examining, in this order: is the property divisible in kind – under civil law and under public law? If yes, division in kind is almost always the economically better solution, and the law is on its side. If no, it must be clarified whether a takeover by one co-owner against an equalisation payment, or a jointly managed private sale, is possible – for the steps and costs of such a sale, including transfer tax and capital gains tax, see Buying property in Salzburg: steps and costs. Only if both fail is the judicial auction the right route – and then it should be pursued swiftly.