Dissolving Shared Property Ownership: An Ecuadorian Legal Guide for Unmarried Co-owners

Acquiring property with a partner, friend, or family member in Ecuador is a significant investment. When circumstances change for unmarried co-owners, dissolving that shared ownership—known as copropiedad—requires a precise legal process. As an Ecuadorian attorney with extensive experience advising expats in Cuenca, I have seen firsthand how easily this process can be complicated by a lack of understanding of local law. This guide provides an authoritative, step-by-step framework for navigating the dissolution of copropiedad, ensuring your rights are protected under Ecuadorian law.

Understanding Copropiedad in Ecuador

In Ecuador, when two or more unmarried individuals jointly purchase a property, they enter into a state of copropiedad or comunidad. This relationship is governed primarily by the Ecuadorian Civil Code (Código Civil). Each co-owner (copropietario) holds a specific percentage of the rights to the property, which is detailed in the public title deed (escritura pública de compraventa) and recorded at the local Property Registry (Registro de la Propiedad).

It is crucial to distinguish copropiedad from a sociedad de bienes (community of assets), which is automatically formed in a marriage or a legally recognized de facto union (Unión de Hecho). If unmarried partners meet the criteria for a Unión de Hecho (stable, monogamous cohabitation), the dissolution process becomes significantly more complex, mirroring a divorce. This is a common and costly oversight for many expats.

The Legal Foundation for Dissolution

The right to exit a co-ownership arrangement is absolute. Article 2033 of the Civil Code (formerly Art. 1363) establishes that no one can be forced to remain in an undivided co-ownership. The dissolution, or partición, can be achieved through two primary pathways.

Voluntary Agreement (Partición Extrajudicial): The most efficient and recommended route. All co-owners mutually agree on a solution, such as one party buying out the other(s) or selling the property and dividing the proceeds. This agreement must be formalized before a Notary Public.
Judicial Dissolution (Partición Judicial): If a voluntary agreement is impossible, any co-owner can file a lawsuit to compel the dissolution. This process is adversarial, time-consuming, and significantly more expensive. The lawsuit, known as a juicio de partición, follows the summary procedure (procedimiento sumario) outlined in the General Organic Code of Processes (Código Orgánico General de Procesos - COGEP).

Step-by-Step Guide to Dissolving Shared Ownership

While the legal principles are national, procedural specifics can vary by municipality. The following steps reflect the process in Cuenca.

Step 1: Legal Consultation and Document Collation

Your first action should be to consult with an experienced Ecuadorian real estate attorney. Gather the following essential documents:

Original Title Deed (Escritura Pública): Confirms the exact ownership percentages.
Updated Property Registry Certificate (Certificado de Gravámenes y Tradición): This essential document, which currently costs approximately $15.00 USD at the Cuenca Property Registry, confirms legal ownership and reveals any liens, mortgages, or legal prohibitions against the property.
Current Year's Property Tax Payment Receipt (Comprobante de Pago del Impuesto Predial): Shows the property's official cadastral value.
Valid Identification: Passports and/or Ecuadorian cédulas for all co-owners.
Poder Especial (Special Power of Attorney): If any co-owner is outside of Ecuador, they must grant a specific, notarized, and apostilled power of attorney to a legal representative in Ecuador to act on their behalf.

Step 2: Negotiation of a Voluntary Agreement

Your attorney can facilitate negotiations to reach a clear, amicable resolution. Key points to agree upon include the property's valuation (often determined by a professional appraiser, or perito avaluador) and the terms of the buyout or sale.

Hyper-Specific Detail: A common point of contention is reimbursement for improvements (mejoras). One partner may have paid for a new roof or kitchen renovation. Under Ecuadorian law, without a formally notarized agreement detailing these contributions, it is extremely difficult to claim compensation beyond the ownership percentage stated in the title deed. The law presumes expenses are shared according to ownership shares unless proven otherwise with legally valid documentation.

Step 3: Municipal Clearances and Tax Payments (The Pre-Notary Stage)

Before a notary can draft the new deed, you must obtain clearance from the local municipality. This is a non-negotiable prerequisite often overlooked by expats. For a transaction in Cuenca, this involves:

Paying Transfer Taxes: The seller(s) pays the capital gains tax (impuesto a la plusvalía) and the buyer pays the transfer tax (impuesto de alcabala). These calculations are performed by the municipality.
Obtaining the Municipal Certificate of No Debt (Certificado de no adeudar al Municipio): This proves all property taxes and municipal fees are paid to date. Without this certificate, the process halts.

Step 4: Execution of the Public Deed of Dissolution

Once municipal requirements are met, all parties (or their legal representatives) appear before a Notary Public to sign the Escritura Pública de Extinción de Condominio y Adjudicación (Deed of Extinction of Co-ownership and Adjudication) or a similar deed of sale.

Hyper-Specific Detail: Notary fees (aranceles notariales) are not arbitrary. They are regulated by a national tariff set by the Consejo de la Judicatura. Fees are calculated based on the property value stipulated in the deed. For a $150,000 property, expect notary fees to be in the range of $600 - $800 USD, plus minor administrative costs.

Step 5: Registration at the Property Registry

The notarized deed is not the final step. It must be submitted to the Registro de la Propiedad in the canton where the property is located. The Registry will review the deed, and upon approval, officially inscribe the new ownership status into the public record. Only upon successful registration is the transfer of ownership legally binding and enforceable against third parties. Registration fees are also based on a percentage of the property value.

Step 6: The Judicial Route (If All Else Fails)

If negotiations collapse, the judicial partition process is initiated. The court will typically appoint an expert to value the property. As physical division is rarely feasible for a house or apartment, the judge will order a public auction (remate judicial). The proceeds are then distributed among the co-owners according to their legal shares, after subtracting significant court costs, legal fees, and expert fees. This path should be considered a last resort due to its high cost and protracted timeline.

Critical Expat Pitfalls to Avoid

Ignoring a Potential Unión de Hecho: If you have lived with your partner in a stable, monogamous relationship, a judge could declare a de facto union exists. This would subject the property to community property rules, overriding the simple copropiedad percentages and requiring a formal liquidation of assets as if it were a divorce.
Verbal Agreements: Relying on spoken promises for buyouts, payments, or reimbursements is legally worthless in Ecuador. All agreements concerning real property must be in a notarized Escritura Pública to be enforceable.
Using a General Power of Attorney: For real estate transactions, a Poder General is often insufficient. A Poder Especial is required, specifically authorizing your representative to sell or transfer your exact share of the specific property in question. The lack of correct wording can invalidate the entire process.
Misunderstanding "Closing Costs": In Ecuador, the "closing" process involves distinct municipal, notary, and registry fees. Understand who is responsible for each cost (typically stipulated in the agreement) to avoid last-minute disputes.

⚠️ Legal Alert: When to Immediately Consult an Attorney

A co-owner is non-communicative, incapacitated, or deceased.
The property has an existing mortgage, lien (gravamen), or legal prohibition (prohibición de enajenar).
There is a fundamental disagreement on the property's value.
You suspect the other co-owner may have established a Unión de Hecho with you.
The other party refuses to negotiate or engage in the process.

Successfully navigating the dissolution of shared property in Ecuador hinges on proactive legal guidance and a clear understanding of the mandatory procedures. By following these steps and avoiding common pitfalls, you can achieve a fair and legally sound resolution.

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