(Last of two parts)
Any of the co-owners may make repairs for the preservation of the estate after notifying the others of the necessity for such repairs, whenever practicable.
Expenses to improve the estate shall be decided upon by a majority of the co-ownership —that is, such expenses must have been approved by the co-owners who represent the controlling interest in the object of the co-ownership.
Should there be no majority, or should the resolution of the majority be seriously prejudicial to those interested in the common property, the court, upon the interested party’s motion, shall order such measures, including the appointment of an administrator.
A co-owner may alter the property owned in common only when consented to by his co-owners, even though benefits for all would result therefrom. But, if the withholding of the consent by one or more of the co-owners is clearly prejudicial to the common interest, the courts may afford adequate relief.
Co-owners may choose to leave the co-ownership. Each co-owner may demand at any time the partition of the estate, insofar as his share is concerned. The decedent, however, may prohibit partition of estate for a period not exceeding 20 years.
Meanwhile, co-owners cannot demand a physical division of the properties forming part of the estate, when to do so would render it unserviceable for the use for which it is intended. But whenever such properties are essentially indivisible and co-owners cannot agree that they be allotted to one of them who shall indemnify the others, they shall be sold and their proceeds distributed.
The partition of the estate shall not prejudice third persons, who shall retain the rights of mortgage, servitude, or any other real rights belonging to them before the division was made.
Thus, the court may only direct the distribution of the co-owners’ respective shares to the estate after debts and other obligations chargeable to the estate, such as funeral charges, expenses of administration, allowance to the widow, and estate tax, if any, shall have been paid. But, the co-owners, or any one of them, may post a bond, which sum the court shall fix, conditioned for the payment of said obligations within such time as the court directs.
The creditors or assignees of the co-owners may take part in and whenever justified, object to the partition of the estate. But, the creditors or assignees cannot impugn any partition already executed when:
it is fraudulent; or
the partition was made despite formal opposition presented to prevent it, without prejudice to the creditor or assignee’s right to maintain its validity.
Before the partition of the estate, the co-owner cannot sell a definite portion thereof without securing the consent of the other co-owners. In Cabrera v. Ysaac, the Supreme Court held that before such partition, the co-owner may execute:
a contract of sale, in which he only sells the undivided interest or the proportionate share of the co-owned property; or
a contract to sell such definite portion, in which ownership thereof transfers to the vendee upon, among others, the partition of the estate.
Upon partition, there shall be a mutual accounting for the benefits received and reimbursements for the expenses made. Each co-owner shall pay for damages caused by reason of his negligence or fraud.
Meanwhile, after the partition, every co-owner shall be liable for defects of title and quality of the portion assigned to each of the other co-owners.
If at the time of the distribution of the co-owners’ respective shares, the executor or administrator of the estate has retained sufficient effects in his hands which may lawfully be applied for the expenses of partition of the properties distributed, he may pay for such expenses when it appears equitable to the court and consistent with the decedent’s intention.
Otherwise, co-owners shall pay for the expenses in proportion to their respective shares or interest in the premises.
If any person interested in the partition does not pay his share, the court may issue an execution in the name of the executor or administrator against the party not paying the sum assessed.
(Note: The facts involving the Ilusorio family were narrated in this article based on: (a) the Supreme Court’s factual summary in Ilusorio v. Bildner, et al., G.R. Nos. 139789 and 139808, 12 May 2000; (b) Myles A. Garcia’s article entitled, “The Ilusorio Family Inheritance Wars,” which was published by Positively Filipino in its digital magazine; and (c) Eric S. Caruncho’s article entitled, “Ilusorio family feud continues–over the mother’s ashes, this time,” which was published by The Philippine Daily Inquirer in the Lifestyle Section of its 6 March 2016 issue.)