Co-ownership (communio)

co-ownership implied ownership of the same thing by two or more owners at the same time. The earliest form of co-ownership was that of the undivided estate of goods among co-heirs after the death of the paterfamilias (Gaius 3.154a: consortium ercto non cito).

Increasing commercial activity and business partnership fostered the devel­opment of a new form of joint ownership known as communio pro indiviso, later called by medieval jurists condominium. This kind of common ownership could arise by common purchase, inheritance, or legacy. Each co-owner had a share in the common property with the right of using, enjoying, or alienating

Property law 147 it to the extent of his or her share, which did not need to be equal among the co-owners. It was not affected by the death of one of the co-owners, whose heirs would simply assume his or her position. All profits and expenses had to be shared by co-owners in proportion to their shares.

Each co-owner had the inalienable right to ask for partition. An agreement among co-owners never to divide was void. For the partition of the common property, each co-owner could bring a partition action: the actio communi dividundo, when common ownership was originated by purchase or legacy, and the actio familiae erciscundae, in the case of an inheritance. These actions empowered the judge to assign all or part of the common property to one or more of the co-owners. In addition to their primordial partition function, these actions served to resolve all other controversial issues that arose from common ownership (e.g., proportional distribution of expenses, indemnity, and compensation among co-owners).