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  • Interpretation
  • No.141
  • Date
  • 1974/12/13
  • Issue
    • In case a real property is held by the co-owners, does a co-owner have the right to mortgage his share of title to the property without the consent of the other co-owner?
  • Holding
    •        Each co-owner of a building or land may create a mortgage on his share of the property if such co-ownership is not based on a joint relationship among the co-owners.
  • Reasoning
    •        Article 819, Paragraph 1 of the Civil Code provides that "each co-owner may freely dispose of his own share." Where the common property is a real property, with the exception of co-ownership based on a joint relationship which is otherwise governed by law, each co-owner is free to dispose of his share of the property under the foregoing provision and is consequently free to create a mortgage on such portion of the property if he deems it necessary to do so to provide security without transferring the possession of the property. In contrast, the second paragraph of the same article reads: "Any disposal of and alteration to, and the creation of any encumbrance on, a common property can only be made with the consent of all co-owners." This provision is meant to apply to the situation where the [entire] property is made the object to be disposed of or altered or charged with an encumbrance by any of the co-owners, rather than referring to the portion of the property shared by any individual co-owner. A comparison between the texts of the two paragraphs will clearly show the true meaning of the law. Our view expressed in Interpretation Yuan-tze No. 1516 is hereby further supplemented.  
      
    • *Translated by Raymond C. Chu.
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