Atidalijimo iš bendrosios dalinės nuosavybės įgyvendinimo problemos Lietuvos teismų praktikoje.
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The recent Lithuanian court practice shows discrepancies in cases dealing with partitioning of common partial divided property. Moreover, no doctrinal research has been concluded on the limits and conditions of the co-owners‘ right to demand that his share should be partitioned from the common partial ownership in Lithuania. Taking into account that proper implementation of co-ownership rights is based on common agreement of co-owners, when no agreement is reached between co-owners regarding the fact and the mode of partitioning, a question arises on what conditions and to what extent the co-owner is free to implement his right to demand partitioning of his share from the common partial ownership. The research on historical developments of the partition law in different European countries shows that the co-owner’s right to partition is based on the idea of pluralistic conception of the modern property law objects. The authors of this article argue that this conception allows the co-owner to enjoy the right to dispose of his share in the common ownership as a separate object of civil turnover at his own volition and without the other co-owner’s consent. However, the right to partition is not absolute and is limited by the rights of the other co-owner to his share of the same property, so the right to partition may be implemented only following the proportionality and interest balance between the co-owners. The authors also argue that following the principles of pacta sunt servanda and party autonomy in civil law, in case the common partial ownership is created by mutual agreement of the parties, the termination clauses of such agreement should be followed and the co-owners shall be allowed to partition only if there are no contradictions provided by such agreement. Also, it is argued that despite the fact that the right to partition is traditionally considered a real absolute right and there are no provisions in the Lithuanian Civil Code on possibility for co-owners to agree on any limits of the right to partition, the co-owners, as the fully fledged owners of their shares in common co-ownership, should be allowed to suspend their right to partition for certain period of time or for certain purposes by mutual agreement. The second part of this article deals with the problem of the mode of partitioning, provided no agreement is reached between the co-owners. It is argued that the priority in solvingthis problem should be given to the partition in kind; and compensation in money, as a mode of partition, can be applied only if it is not possible to divide the property in kind without disproportionate damage to its destination and only according to the co-owner’s consent. Otherwise it can be treated as forced redemption, violating the co-owners’ constitutional right to property. Therefore, it is concluded that in case it is impossible to divide the property in kind and it is determined that the interests of the co-owner demanding partition by a judicial procedure can be fulfilled by transferring his share of the property held in common partial divided ownership to any third person, the claim of this co-owner should be dismissed on the ground that the mode of partition infringes the balance of interests of the co-owners.
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