Dutch Civil Code

Book 3 Property law in general

Title 3.7 Community of property

Section 3.7.1 General provisions

Article 3:166 Definition of a 'community of property'
- 1. A community of property is present when one or more assets (property rights) belong to two or more co-proprietors jointly.
- 2. The shares of the co-proprietors in a community of property are equal, unless something else results from the mutual legal relationship between the co-proprietors.
- 3. The legal relationship between the co-proprietors is subject to the principle of reasonableness and fairness as meant in Article 6:2 of the Civil Code.

Article 3:167 Replacement of community assets
Assets that must be considered to have come in the place of a community asset belong to the community of property.

Article 3:168 Arrangement for enjoyment, use and administration of community assets
- 1. The co-proprietors may make a contractual arrangement for the enjoyment, the use and the administration of the community assets.
- 2. As far as such a contractual arrangement does not exist, the Subdistrict Court may, upon the request of an appropriate party, make an arrangement for this purpose, if necessary added with a fiduciary administration over one or more community assets. When making such judicial decision, the Subdistrict Court takes into account, with due observance of fairness, both the interests of the co-proprietors and the public interest.
- 3. Upon the request of the most appropriate party, the Subdistrict Court may, on the ground of unforeseen circumstances, change or end an existing contractual or court arrangement for the enjoyment, the use and the administration of the community assets.
- 4. A contractual or court arrangement for the enjoyment, the use and the administration of the community assets is also binding for the legal successors of a co-proprietor.
- 5. Articles 4:154, 4:157 up to and including 4:166, 4:168, 4:172, 4:173 and 4:174 of the Civil Code apply accordingly to a fiduciary administration established by virtue of paragraph 2, insofar the Subdistrict Court has not ordered otherwise at that time, on the understanding that the remuneration meant in Article 4:159 may be set to another amount by the Subdistrict Court on the ground of particular circumstances and that the provision of security as referred to in Article 4:160 may be ordered at all times.

Article 3:169 Right to use community assets
Unless the contractual or court arrangement for the enjoyment, the use and the administration of the community assets provides otherwise, each co-proprietor is entitled to use all community assets, on condition that this use is compatible with the rights of the other co-proprietors.

Article 3:170 Administration of joint property
- 1. Ordinary maintenance operations and operations to preserve the assets of the community of property, and in general operations which cannot be postponed without causing damage, may be performed by all co-proprietors, if necessary independently. In order to maintain a legal claim for the community of property, each of the co-proprietors is entitled to interrupt a running prescription period.
- 2. Other than that, the administration of a community property is done by the co-proprietors together, unless an agreement or arrangement stipulates differently. The term 'administration' is understood as all operations that can be useful for the normal exploitation of a common asset as well as collecting performances which are chargeable to the community of property on the basis of a common debt-claim.
- 3. Other operations concerning the community of property then those mentioned in the previous paragraph, may be performed only by the co-proprietors jointly.

Article 3:171 Competence to start legal proceedings
Unless an agreement or arrangement provides otherwise, every co-proprietor is entitled to file legal claims and to lodge legal applications at the court in order to get a judicial decision on behalf of the community of property. An agreement or arrangement that grants one or more co-proprietors the right to administer the community of property, indicates that the other co-proprietors are not allowed to file legal claims or to lodge applications, unless it provides otherwise.

Article 3:172 Fruits, other benefits and expenses
Unless the agreement or arrangement provides otherwise, the co-proprietors participate, with regard to the benefits (fruits) and other advantages produced by the community of property, in proportion to their share in that community, and they must contribute proportionality to their shares to expenditures resulting from authorised operations for the community of property.

Article 3:173 Rendering account
Every co-proprietor may claim in court that the person who has administered the community of property on behalf of all co-proprietors shall render account of his administration annually and at least at the final end of his administration.

Article 3:174 Realisation of community debts and community assets
- 1. The court that would be competent to rule on a legal claim for the apportionment of the assets of the community of property or before which such a legal claim is pending already may for important reasons, like the possibility to pay off a community debt, authorise a co-proprietor, upon his request, to sell or realise a community asset. Where a co-proprietor, for whom a to be sold community asset has a particular value, is prepared to acquire this asset individually on payment of its estimated value, the court may proclaim such an acquisition.
- 2. The court, meant in paragraph 1, may authorise a co-proprietor, upon his request, to encumber a community asset with a pledge or a mortgage as security for the settlement of a community debt which already existed or which has yet to be accepted in order to preserve a community asset.

Article 3:175 Power of disposition with regard to shares in community assets
- 1. Unless something differently results from the legal relationship between the co-proprietors, each co-proprietor is allowed to convey (transfer and encumber) his share in a community asset.
- 2. If the legal relationship between the co-proprietors implies that they are only allowed to convey (transfer and encumber) their shares in a community asset with approval of all co-proprietors, then Article 3:168, paragraph 3 and 4 shall apply accordingly.
- 3. The creditors of a co-proprietor may recover their debt-claim from his share in a community asset. After the share is sold by foreclosure by one or more creditors, the other co-proprietors can no longer invoke any restrictions to the power of disposition between them and the person who obtained the share at that sale.

Article 3:176 Acquisition of a share
- 1. A person who has acquired a share or a limited property right in such a share has to report his acquisition without delay to the other co-proprietors or to the one who is assigned by them or by the Subdistrict Court to administer the involved community asset.
- 2. A transferred share is acquired in addition with the obligation to pay a compensation to the community of property of what the alienator of that share still was indebted to it. The alienator of the share and the acquiring party are joint and several liable for this compensatory obligation. The acquiring party may withdraw himself from this obligation by transferring his share at his expense to the remaining co-proprietors; the remaining co-proprietors must co-operate in such a transfer.
- 3. The previous paragraphs do not apply when all the shares in a community asset are jointly sold y foreclosure.

Article 3:177 Transfer of a community asset while a share in it is burdened with a limited property right
- 1. When a community asset is apportioned or transferred, while a share in it, belonging to one of the co-proprietors, is encumbered with a limited property right, then the entire asset will be encumbered with that limited property right as far as it is acquired by the co-proprietor to whom the encumbered share belongs or, if the asset is not acquired by this co-proprietor but by one of the other co-proprietors or by a third person, it will be released entirely from this limited property right, without prejudice to what the proprietor of the limited property right or the co-proprietor may claim from each other on the basis of their mutual legal relationship in view of the surplus value that the other has obtained as a result of this statutory provision.
- 2. An apportionment or a transfer to which the co-proprietors have engaged themselves after the involved share had been encumbered with a limited property right requires the co-operation of the limited proprietor.
- 3. A pledge or a mortgage, stipulated at the apportionment of the involved community asset to the co-proprietor meant in the first paragraph in order to provide security for what he is or will become indebted to the other co-proprietors on account of the apportionment, has priority over the limited property right that was established by this co-proprietor on his share, provided that the pledge or mortgage is established at the same moment on which the asset, that is encumbered with it, is delivered to this co-proprietor.

Article 3:178 Right of action to claim the apportionment of a community asset
- 1. Each of the co-proprietors as well as each of the persons with a limited property right on a share in a community asset may at all times claim in court the division and apportionment of that community asset, unless something differently results from the nature of the community of property or from the following paragraphs.
- 2. Upon the request of a co-proprietor, the court where a legal claim for the apportionment of a community asset is pending may order that all or some of the due and collectable community debts are to be satisfied before proceeding to the apportionment itself.
- 3. If the interests of one or more co-proprietors in a delay of the apportionment of a community asset are of considerably more weight than the interests which are served by the apportionment itself, then the court where a legal claim for an apportionment is pending, may exclude, upon the request of a co-proprietor, the legal claim for the apportionment of that community asset one or several times, each time for a period of at the most three years.
- 4. When no legal claim for an apportionment is pending at court, a judicial decision as meant in paragraph 2 and 3 may be given, upon the request of one of the co-proprietors, by the court that would be competent with respect to the legal claim to apportion the community asset in question.
- 5. The persons who may claim in court the apportionment of a community asset may by agreement exclude this competence one or more times, each time for a period of at the most five years. Paragraphs 3 and 4 of Article 3:168 apply accordingly to such an agreement.

Article 3:179 Legal claim to apportion the entire community of property
- 1. When the apportionment of a community asset is claimed in court, each of the co-proprietors may demand that all community assets and all community debts are to be involved in the apportionment, unless there are important reasons for a partial apportionment. The assets that must remain unapportioned on one of the grounds mentioned in Article 3:178 are excluded from the apportionment.
- 2. The fact that one or more community assets are not drawn into the apportionment of the community of property has only the effect that the apportionment of these assets may still be claimed.
- 3. Section 3 of Title 2 of Book 6 of the Civil Code applies to the apportionment of a community debt.

Article 3:180 A creditor may claim the apportionment of the community of property
- 1. A creditor with a due and collectable debt-claim against a co-proprietor, may claim in court the apportionment of the community of property, yet only to the extent that this is necessary to recover his debt-claim. Article 3:178 paragraph 3 is applicable in that event.
- 2. When a creditor has obtained a court decision which enables him to demand the execution of the apportionment of the community of property, then such an apportionment requires his co-operation.

Article 3:181 Appointment of a neutral person
- 1. If the co-proprietors or the persons whose co-operation is required, do not co-operate in an apportionment that has been ordered by the court, then the court that has ruled at first instance on the apportionment may appoint, upon the request of the most appropriate party, a neutral person who will represent all involved parties at the apportionment and serve their interests at his own discretion, insofar such a neutral person not already has been appointed by the court that had ordered the apportionment. If the parties who refuse to co-operate in the apportionment have conflicting interests, then a neutral person will be appointed for each of them.
- 2. The neutral person is compelled to receive on behalf of the persons who are represented by him all assets which in consequence of the apportionment belong to the persons he represents and to administrate those assets in accordance with the provisions for a fiduciary administration as meant in Article 1:410 of Civil Code, until these assets are handed over to their proprietor.
- 3. The neutral person is entitled to a remuneration, to be paid by the proprietor of the assets that are received and administered by the neutral person pursuant to the apportionment. Upon the request of the neutral person this remuneration shall be determined by the court that has appointed him.

Article 3:182 Apportionment
An apportionment is every juridical act in which all co-proprietors, either in person or through a representative, participate and which has the effect that one or more assets of a community of property are assigned to and subsequently acquired by one of the co-proprietors to the exclusion of all others. An act is not an apportionment if it intends to perform for account of the community of property an obligation indebted to one or more co-proprietors, that does not result from a juridical act as meant in the previous sentence.

Article 3:183 Way in which an apportionment is performed
- 1. An apportionment of a community of property may be performed in the way and in the form which parties think fit, provided that all co-proprietors and all persons whose co-operation is required are free to administer their property independently and have co-operated in the apportionment, either in person or through a representative, or, in the event that the property of one of them is placed under a fiduciary administration, that this person has been represented by his legal administrator who, if need be, has obtained the necessary approval or authorisation for this purpose.
- 2. In other situations an apportionment has to be performed by means of a notarial deed, unless the court has ordered otherwise. Where the apportionment has to be performed by means of a notarial deed as meant in the previous sentence, it must be approved by the Subdistrict Court that has jurisdiction to authorize the legal representative of the party who is not free to administer his property independently, to perform an act of conveyance (transfer or encumber an asset).

Article 3:184 Imputation
- 1. Each co-proprietor may demand at the apportionment that what one of the other co-proprietors is indebted to the community of property shall be imputed to this co-proprietor's share. This imputation takes place irrespective of the solvability of this debtor. If it concerns a debt that will be due and collectable at a future date, then it is imputed for its cash value at the time of the apportionment.
- 2. The previous paragraph does not apply to debts under a not yet fulfilled condition precedent.

Article 3:185 Apportionment performed by the court
- 1. As far as the co-proprietors and the persons whose co-operation is required, cannot come to a mutual agreement over the apportionment of the community of property or a community asset, the court may proclaim, upon the request of the most appropriate party, how the apportionment has to be carried out or it may perform the apportionment itself, always deciding in fairness taking account of the interests of the involved parties as well as of the public interest.
- 2. Where the court itself performs the apportionment it may do so in the following manners :
a. the apportionment of a part of a community asset to each of the co-proprietors;
b. an overapportionment in favour of one or more co-proprietors under the obligation, incumbent upon them, to compensate the received surplus value to the other co-proprietors in accordance with the value of each share at the moment of the apportionment;
c. the distribution of the net sale proceeds of a community asset or of a part of such an asset after it has been sold in a way as ordered by the court.
- 3. If necessary the court may order that a party, who as a result of an overapportionment has received more than the value of his share, is allowed to pay off the surplus value at once or periodically in instalments. It may give such an order under the condition that this party has to provide security of a certain kind and to a certain amount.

Article 3:186 Delivery
- 1. To accomplish that each of the co-proprietors becomes the sole proprietor of the assets that are apportioned to him, a delivery is required in the same way as this is necessary for a transfer of such assets.
- 2. What a co-proprietor acquires due to an apportionment, he will hold individually on account of the same legal basis as the co-proprietors did prior to the apportionment.

Article 3:187 Documents and other papers to prove someone's property
- 1. Documents and other papers with which a person is able to prove that something is his property and that go with the apportioned assets, are handed over to the person who has acquired these assets by virtue of the apportionment.
- 2. General estate documents and papers as meant in paragraph 1 that are related as well to property that is apportioned to other co-proprietors, stay with the person who is appointed for this purpose by the majority of the involved co-proprietors, under the obligation towards the co-proprietors to make it possible for them to examine these documents and, if one of them requires so, to supply duplicates or extracts at the expense of that co-proprietor.
- 3. If a majority as meant in the previous paragraph is absent, then the court that has passed a judgment on the apportionment shall appoint, upon the request of a co-proprietor, a person as meant in the preceding paragraph. In other situations this person may be appointed upon the request of a co-proprietor by the Subdistrict Court. It is not possible to appeal to a higher court against a court decision as referred to in the present paragraph.

Article 3:188 Compensation for damages
- 1. Unless the co-proprietors have agreed otherwise, they are compelled towards each other to compensate, in proportionality to their shares, the damage that is caused to the community of property by a foreclosure or by a disturbance due to an event that has occurred prior to the apportionment and also, when a debt-claim is apportioned in its entirety to one of the co-proprietors, the damage that results from the fact that the debtor is not solvent enough at the moment of the apportionment to fully pay off his debt to this co-proprietor.
- 2. The other co-proprietors are not compelled to compensate the damages that one of the co-proprietors has suffered due to a foreclosure or disturbance that has occurred because of his own fault.
- 3. An obligation to compensate damages which results from the fact that the debtor is not solvent enough to fully pay off his debt ceases to exist three years after the apportionment or, if the relevant debt-claim was not yet due and collectable at the time of the apportionment, three years after it has become due and collectable.
- 4. If a co-proprietor appears to be unable to pay his share of the damages for which he is liable pursuant to the provision of paragraph 1, then the shares of the other co-proprietors in these damages are raised proportionally.

Section 3.7.2 Some particular communities of property

Article 3:189 Particular communities of property
- 1. The statutory provisions of this Title do not apply to a marital community of property, a community of property of a registered partnership, a community of property of a commercial partnership, this is to say as long as these communities are not dissolved, nor to a community of property that consists of a building which has been split up in different apartment rights, as long as the split up has not ended.
- 2. The statutory provisions of this Section apply to a community of property between the heirs to an estate of a deceased person (heritage) as well as to a dissolved marital community of property, a dissolved community of property of a registered partnership, a dissolved community of property of a commercial partnership and a community of property that consists of a building that once was split up in different apartment rights, which split up however has ended. The statutory provisions of the first Section of this Title apply as well to the before mentioned communities insofar the present Section does not indicate otherwise.

Article 3:190 Power of disposition over a share in a community asset
- 1. A co-proprietor may not independently convey (transfer or encumber) his share in a community asset; his creditors cannot recover their debt-claim through a sale by foreclosure of such a share without the approval of the other co-proprietors.
- 2. A co-proprietor of such a share is nevertheless allowed to encumber it with a pledge or mortgage without the approval of the other co-proprietors. As long as the asset, of which a share is pledged or mortgaged, belongs to the community of property, the holder of the pledge or mortgage on such a share cannot recover his debt-claim through a sale by foreclosure of the asset or of the encumbered share in it, unless the other co-proprietors consent with this.

Article 3:191 Power of disposition over a share in the entire community of property
- 1. Unless something differently results from the legal relationship between the co-proprietors, each co-proprietor is entitled to convey (transfer or encumber) his share in the community of property as a whole, while his creditors are allowed, when entitled to so, to recover their debt-claim through a sale by foreclosure of such a share without the approval of the other co-proprietors
- 2. When the legal relationship between the co-proprietors implies that they cannot convey (transfer or encumber) their shares in the community of property as a whole without the approval of all other co-proprietors, then Article 3:168 paragraph 3 and 4 shall apply accordingly.

Article 3:192 Recovery of debts from the community of property
Debts belonging to the community of property may be recovered from the assets of that community.

Article 3:193 Objection of a creditor against an apportionment
- 1. A creditor whose debt-claim can be recovered from the assets of the community of property, may request the court to appoint a liquidator when the community of property appears to become apportioned before its due and collectable debts are satisfied or when he faces the threat that his debt-claim will not be satisfied fully or not within a reasonable time, either because the community of property is not administered or winded up adequately, or because another creditor will recover his debt-claim from the assets of the community of property. Section 3 of Title 6 of Book 4 of the Civil Code, regulating the winding up of a heritage prior to its apportionment, applies accordingly.
- 2. A creditor of an individual co-proprietor may request the court even so to appoint a liquidator when his interests are severely damaged by the behaviour of the co-proprietors.
- 3. Paragraph 1 and 2 do not apply to a dissolved community of property of a commercial partnership; the following sentences will be applicable instead. A creditor whose debt-claim can be recovered from the assets of the community of property, may object against an apportionment of the community of property. An apportionment that has come about after such an objection, is voidable on the understanding that this ground to nullify the apportionment may only be invoked by the creditor who has made the objection against the apportionment and that it may only be nullified by this creditor on his own behalf and insofar this is necessary to undo the damage that he has suffered due to the voidable apportionment.

Article 3:194 Inventory of the community of property
- 1. Each co-proprietor may claim in court that the apportionment has to start with the making of an inventory of all community assets and community debts.
- 2. A co-proprietor who deliberately conceals, loses or hides community assets, forfeits his share in these assets to the other co-proprietors.

Section 3.7.3 Null and void and voidable apportionments

Article 3:195 A null and void apportionment
- 1. An apportionment is null and void when not all co-proprietors and not all other persons whose co-operation is required, have participated in it, unless it is done by means of a notarial deed, in which case it is voidable, on the understanding that it may be nullified only by the person who has not participated in the apportionment. The right of action (legal claim) of this person to nullify the voidable apportionment becomes prescribed one year after the apportionment has come to his knowledge.
- 2. If someone has participated in the apportionment who was not entitled to the community of property or if one of the co-proprietors has successfully claimed a bigger share at the apportionment than the share to which he was entitled, then what is paid out wrongfully may be reclaimed on behalf of the community of property; other than that the apportionment remains effective.

Article 3:196 A voidable apportionment
- 1. In addition to the grounds that apply in general to a nullification of voidable juridical acts, an apportionment is voidable too when a co-proprietor has been mistaken with regard to the value of one or more of the assets or debts that were apportioned, provided that as a result he has been damaged for more than one fourth of the value which his share would have had otherwise.
- 2. When the co-proprietor, meant in the previous paragraph, has proved that he has suffered a damage of more than one fourth of the real value of his share at the apportionment, the law presumes that he has been mistaken with regard to the value of one or more assets or debts.
- 3. In order to determine whether a co-proprietor has been damaged in the previous way, all assets and debts of the community of property are appreciated to their value at the time of the apportionment. Community assets and community debts that were not involved in the apportionment, are not counted in.
- 4. An apportionment is not voidable on the ground of a mistake with regard tot the value of one or more assets or debts, if the damaged co-proprietor has explicitly accepted the apportionment at his benefit or at his expense.

Article 3:197 Offer of the other co-proprietors to compensate damages
The right of a co-proprietor to nullify a voidable apportionment on the ground that he has been damaged by it for more than one fourth of the real value of his share, expires when the other co-proprietors make an offer to him to compensate his damage, either financially or in kind.

Article 3:198 Adjustment of a voidable apportionment
When an appeal for a nullification of a voidable apportionment is made, the court may, without prejudice to Article 3:53 and 3:54, adjust or change the apportionment instead of nullifying it, but only when one of the parties to the apportionment had requested so.

Article 3:199 Exclusion of the applicability of the general provisions for mistake
Articles 6:228 up to and including 6:230 of the Civil Code do not apply to an apportionment as meant in the present Section.

Article 3:200 Statutory time-limit for the right of action to appeal to a nullification of a voidable apportionment
A right of action (legal claim) for the nullification of a voidable apportionment ceases to exist due to a legal time-limit on the expiry of three years since the completion of this apportionment, without taking into account the moment on which the apportioned assets are delivered or passed over to the co-proprietors.