In response to the enquiries and requests for advice received on the website, we have opened this section to address the issues they raise, clarify the relevant legal provisions, and explain the practical procedures for protecting rights, in a general formulation that allows all readers to benefit from them, while respecting the privacy of the persons concerned and safeguarding the confidentiality of their data, without disclosing their identities or any details that would allow them to be identified. The opinions published do not constitute an answer to a specific case, as private advice remains contingent upon examining the facts and documents and assessing the circumstances of each case.
We will undertake to publish legal answers to the questions we receive within the framework of requests for advice.
One of the heirs refuses to divide the inherited real property; how can the remaining heirs obtain their shares?
The website receives questions concerning estates that include one or more immovable properties, where the heirs remain co-owners for years because one of them refuses partition or declines to attend and sign. Some of them may take exclusive possession of the dwelling, the exploitation, or the collection of rents, while the others are unable to benefit from their shares. The question raised concerns the effect of this refusal and the procedures that allow the termination of co-ownership and the obtaining of rights.
The principle is that the refusal of one heir does not deprive the other co-owners of the right to demand partition. Moroccan law does not compel anyone to remain in co-ownership and grants every co-owner the right to apply to the court to seek its termination, even if his share is small. However, this does not permit a consensual partition by majority to be imposed on the party who refuses; rather, it requires recourse to judicial partition proceedings when agreement cannot be reached, taking into account any written agreement to remain in co-ownership for a specified period, and the possibility afforded by law to seek its rescission on legitimate grounds.
In practice, the proceedings begin with the collection of the inheritance certificate (rasm al-iratha), the death documents, and the title deeds of the deceased’s property, together with the extraction of a recent certificate of ownership for each registered immovable property, and the provision of documents proving ownership in the case of unregistered immovables. The inheritance certificate establishes the status of the heirs and their shares, but it is not sufficient by itself to prove that each property sought to be partitioned belonged to the deceased. If one of the heirs died after him, the documents concerning his own inheritance must be completed so as to determine the persons to whom his share has passed.
It is also necessary to prepare a schedule of the assets sought to be partitioned, specifying the location of each immovable, its reference, area, occupants, income, and any mortgages, attachments, or third-party rights encumbering it, while recording the names of all co-owners, their addresses, and their shares, and verifying whether any of them is a minor, a person under legal incapacity, or an heir residing abroad. The debts of the estate, the rights, and the bequests that must be taken into account before distributing the net estate must likewise be identified.
Before instituting proceedings, it is advisable to submit a clear settlement proposal to the other heirs, comprising either a partition in kind that is feasible to implement, the purchase by some of them of the others’ shares by mutual consent, or the sale of the assets by agreement and distribution of the proceeds. This proposal may be served through a judicial officer (huissier de justice) with a reasonable time limit for reply fixed, without this invitation being regarded as a general precondition for the admissibility of the partition action. If the refusal persists, judicial proceedings may be commenced without waiting for the consent of the heir who refuses.
The action is brought by a lawyer before the competent court, with a distinction drawn between a claim for the partition of the estate and the partition of a co-owned immovable outside the framework of its liquidation. Article 302 of the Code of Civil Procedure No 58.25 places the claim for partition of the estate within the jurisdiction of the court of first instance of the place where the succession opened, namely the real domicile of the deceased or his place of residence, whereas an action concerning immovable property is, in principle, subject to the court of the place where the property is situated. The importance of the correct characterisation becomes apparent when the assets are distributed among different judicial districts.
The proceedings must include all the co-owners, as it is not sufficient to bring the action against the heir who refuses alone, even if the remaining heirs agree to the partition. The action must also be provisionally registered against the relevant land registers if it concerns registered immovables, with proof of such registration adduced, pursuant to Article 316 of the Code of Real Rights. Holders of real rights encumbering the property, such as a mortgage creditor and a holder of a right of usufruct, as the case may be, must also be joined.
If any of the heirs is a minor or a person under legal incapacity, the rules of legal representation, judicial supervision, and conflicts of interest must be observed. If one of them is abroad, his address must be ascertained and the appropriate notification procedures followed. As for failure to appear or refusal to sign, this does not confer on the person concerned the power to halt the proceedings once notification and the rights of the defence have been respected.
The claim is directed towards partition in kind whenever possible, with an expert assessment to determine the value of the assets and the feasibility of setting apart independent shares capable of being used, and towards a sale where it is established that partition is impossible. It is not enough for the property to be physically divisible; town planning and subdivision rules and the specific regulations governing its nature must be respected, and the intended utility of each part must be preserved.
If the estate comprises several immovable properties, this does not necessarily mean dividing each property into small parts or selling everything, since it is possible to consider forming shares balanced in value, with a cash sum to adjust the difference where necessary, provided the ownership, the shares, and the applicable rules so permit. However, this possibility does not entitle one heir to impose his exclusive allocation of a property of his choosing, or to compel another to purchase his share at the price he stipulates.
The expert assessment is of practical importance because it determines whether partition is feasible. If the expert concludes that partition in kind is possible, the shares, locations, boundaries, and areas must be specified, and the technical file required by Article 317 of the Code of Real Rights must be prepared. Observations should therefore be submitted on any deficiency or any valuation that is not reasoned, and completion of the expert assessment should be sought where appropriate before it is adopted as the basis for the judgment.
If it is established that the immovable does not admit of partition in kind, or that its partition would contravene the laws and regulations or substantially diminish its value, the court orders its sale by public auction, fixing the opening price by expert assessment and completing the procedures for sale, publicity, and notification, and observing the requirements of Article 319 of the Code of Real Rights concerning the exhaustion of ordinary avenues of appeal and, where appropriate, cassation in respect of the judgment ordering partition.
The heirs may take part in the auction in accordance with its conditions, without their status conferring on them the right to acquire the property at the price they choose. After the sale and the deposit of the proceeds, the net balance is distributed according to the shares, taking into account the costs, debts, and preferential rights. The follow-up therefore does not end with the mere issuance of the judgment, but continues until execution and distribution are completed.
If partition in kind is ordered, the procedures for the drawing of lots and the delivery of the shares in accordance with the judgment and the law are completed, followed by the technical and land registration steps necessary to record the separate rights in the case of registered immovables. The execution of a judicial decision that satisfies its conditions does not depend on a new consensual signature by the heir who refuses.
As regards the rents and income that one heir collects exclusively, an account may be demanded and payment of the share of the other co-owners claimed. Article 965 of the Code of Obligations and Contracts obliges a co-owner to account for anything he has received in excess of his share of the fruits of the common property. For this purpose it is advisable to retain the leases, receipts, transfers, and correspondence evidencing the income and the period during which it was collected.
Compensation for exclusive occupation of the dwelling or exclusive exploitation is not automatically due merely because one of the heirs resides in the property; rather, it requires a specific claim and proof of the circumstances and duration of the deprivation of enjoyment, with account taken of any prior agreement. Where there is an imminent risk to the property or its income, consideration may be given to a protective measure or judicial sequestration where the conditions for either are satisfied.
Agreement remains possible while the action is pending, since the heirs may reach a purchase of the shares, a consensual sale, or a partition that satisfies the legal requirements and safeguards the rights of all. A temporary distribution of use, such as each heir occupying a floor or enjoying the property for a fixed period, does not alone constitute a final partition of ownership.
Accordingly, obtaining one’s share does not depend on persuading the refusing heir indefinitely; rather, it proceeds through the preparation of documents and the ascertainment of rights, followed by an attempt at settlement, and, where that proves impossible, the bringing of a complete action in terms of parties and procedures, and its pursuit until the shares are set apart or the proceeds of what cannot be partitioned are distributed, together with claims for the income due and the protection of the common property according to the circumstances of each case.
This article is general information, not legal advice. Every matter has its own facts and calls for its own assessment.
