According to Art. 1035 of the Civil Code (Act of 23 April 1964. Civil Code, Journal of Laws of 2022, item 1360, hereinafter referred to as: „CC”), if the inheritance falls to several heirs, the co-ownership of the inheritance property and the division of inheritance are governed by the provisions on co-ownership in fractional parts, respectively.
In order to explain exactly what the „proper” application of the provisions on co-ownership means, it is first necessary to indicate what the legal situation of the heirs is before the division of the estate. Before the inheritance is divided, the inherited property is jointly owned by all co-heirs. Each of them may dispose of his share with the consent of the other co-heirs. After the division of the inheritance, the co-ownership of the inheritance property of all heirs ceases to exist. From the moment of division of the inheritance, each of the heirs may independently manage the part of the inheritance due to him – so the provisions on co-ownership do not apply.
Appropriate application of the provisions on joint ownership to the legal situation of co-heirs before the division of inheritance consists in applying the provisions on joint ownership (Article 196 of the Civil Code and the following), but only to the extent that they are not in conflict with the specific features of the joint ownership of the estate, and also when the provisions on the joint inheritance property and the division of inheritance (Article 1035 of the Civil Code and the following) do not provide otherwise (E. Skowrońska-Bocian, J. Wierciński [in:] Code of Civil. Commentary. Volume VI. Spadki, ed. II, ed. J. Gudowski, Warsaw 2017, article 1035).
Which co-ownership laws do we apply and which do we not?
Prior to the division of the inheritance, each of the heirs has the right to co-own the items belonging to the inheritance (Article 206 of the Civil Code). Each of the heirs has the right and obligation to cooperate in the management of the common thing (unless a trustee has been appointed or a temporary administration has been established; Art. 200). Each of the heirs receives the benefits and other income from the inheritance property in relation to the share of the inheritance to which he is entitled, and incurs expenses and burdens in this proportion (Article 207 of the Civil Code). To perform activities exceeding the scope of ordinary management, the consent of all co-heirs is required, and in the absence of such consent, co-heirs whose shares are at least half may request a decision by the court, which will adjudicate taking into account the purpose of the intended activity and the interests of all co-owners (Article 199 of the Civil Code ). Each of the co-owners may perform any activities and pursue any claims that aim at preserving the joint right.
Not applicable:
- article 197 of the Civil Code, because it speaks of the presumption of equality of shares of co-owners, and yet the shares of co-heirs depend on the share in the inheritance;
- article 198 of the Civil Code, because Art. 1036 of the Civil Code directly states that each of the co-heirs may dispose of his share only with the consent of the other co-heirs;
- the provisions of art. 210-222 of the Civil Code, because they deal with the abolition of joint ownership, and in the case of co-heirs, this is regulated by the provisions on the division of inheritance.