Which of the two spouses keeps the jointly purchased property after divorce?
A married couple, during their marriage, had jointly purchased an apartment. After the breakdown of their married life, the apartment is used exclusively by one former spouse as their residence, without taking the other former spouse into account, and provocatively ignores their requests. What happens in such cases, and until the property is sold and the price divided, is the wronged former spouse entitled to claim something from the party who has infringed their rights?
How is the claim for Compensation for Use proved?
The relevant claim arises from the mere fact of exclusive use of the joint property by one of the co-owners. The co-owner who does not use the property is granted by law (Civil Code (AK)) the right to seek their share in the fruits of the property used exclusively by the other co-owner. They may, in other words, seek “compensation for use of their share in the joint property”, specifically by claiming their share in the monthly rent that the property would yield if it were leased. All that will be required are some real estate agents’ reports on the usual rents for properties of this kind in the particular area, or similar listings, so that the court may calculate the rent that should have been shared between the co-owners.
What is a Lawsuit for Compensation for Use?
The total amount calculated from the monthly compensation will be claimed from the co-owner who exclusively uses the property by filing a lawsuit for compensation for use before the court having subject-matter (and territorial) jurisdiction against the co-owner who is causing the harm, and only for that part of the amount which has not become time-barred, that is, for which the five-year limitation period has not elapsed.
More specifically, in the case of urban real property, this benefit consists of the rental value, during the period of exclusive use, of the share belonging to the co-owners excluded from use. This is not rent, since no lease relationship exists, but a benefit payable as compensation under the above provisions. This benefit is determined by the rental value of the joint property, that is, the amount of rent that the co-owner who uses it would pay for the use of another similar property, on the basis of the general rental conditions prevailing in the area at the relevant time and the condition of the joint property (Areios Pagos 316/2021, Areios Pagos 1199/2021, Areios Pagos 671/2019, Areios Pagos 1208/2018).
- See also article Purchase of Real Property
- See also article Sale of Real Property
- See also article Lawsuit for Division of Real Property
- See also article SYPOTHA – Unauthorized Construction
- See also article Fines for Unauthorized Construction
- See also article Annulment of SYPOTHA Decision
- See also article Acquisitive Prescription
- See also article What is the KAEK?
- See also article Pre-notation of Mortgage
- See also article Eviction of Tenant
- See also article Professional and Commercial Leases
- See also article Correction of Manifest Error – Unknown Owner – National Land Registry
FREQUENTLY ASKED QUESTIONS ON PROPERTY AFTER DIVORCE – COMPENSATION FOR USE
1. What am I entitled to if my former spouse alone keeps the jointly owned apartment?
When a property is jointly owned by both spouses and, following the breakdown of the marriage, is used exclusively by one of them, the other co-owner is entitled to compensation for use in proportion to their share. The claim arises from the mere fact of exclusive use, without the need to prove damage or fault. In practice, what is sought is the share in the rent that the property would yield if it were leased under current market conditions. This claim exists in parallel with the right to seek division or sale of the property and is valid until the final dissolution of the co-ownership.
2. How is the amount of compensation for use calculated?
The amount corresponds to the rental value of the property, that is, the rent that a third party would pay for a similar apartment in the same area and condition. The excluded co-owner receives their share (usually half) of this monthly amount for the entire period of exclusive use. The court, in accordance with the established case-law of Areios Pagos, takes into account real estate agents’ reports, listings of similar properties, the age, surface area and location of the property. This is not rent in the strict sense, but a payable benefit that one party has reaped at the expense of the other.
3. Within what period does my claim become time-barred?
The claim for compensation for use is subject to a five-year limitation period. This means that the amounts claimed are those corresponding to the last five years before the filing of the lawsuit, while older sums are definitively lost. For this reason, delay is costly: every month that passes without action removes a corresponding month from the back end of the five-year period. In addition, the overall procedure — from the preparation and filing of the lawsuit, the oral hearing in court and the issuance of the judgment — usually lasts one to two years at first instance, depending on the workload of the court and any adjournments.
4. What documents and evidence do I need?
The basic requirements are the title of ownership (deed of purchase) and the registration certificate or land registry sheet proving co-ownership in the corresponding shares. Evidence of exclusive use by the other spouse is also required (utility bills in their name, certificate of residence, witnesses, an ignored extra-judicial notice), as well as evidence of rental value: real estate agents’ reports, listings of similar properties in the area, and a surveyor’s valuation if needed. Documents relating to the divorce or breakdown of married cohabitation are also useful in determining the starting point of the claim.
5. What are the chances of success of my lawsuit?
The lawsuit for compensation for use consistently has high success rates, as it is based on established case-law (indicatively Areios Pagos 316/2021, 1199/2021, 671/2019, 1208/2018) and the claim arises automatically from the exclusive use of the joint property. The dispute shifts mainly to the level of the amount awarded, which depends on the quality of the evidence regarding the rental value. Any counter-pleas by the other spouse (for instance, that they alone covered the shared expenses, repairs, or a loan secured against the property) may reduce the amount, but without overturning the basis of the claim. The assessment is made on a case-by-case basis.
6. What is the role of the lawyer in this procedure?
The lawyer first examines the titles and the co-ownership shares, determines the starting point of the exclusive use, and calculates the period that is not time-barred. They draft an extra-judicial notice that formally interrupts the limitation period and creates written evidence of the other party’s refusal, file the lawsuit before the competent Court of First Instance, and gather the evidence on rental value. Ziamparas D. & Associates Law Firm handles cases of compensation for use of jointly owned property after divorce, often in parallel with a lawsuit for division, so that the client may collect the share owed to them and achieve the final dissolution of the co-ownership.