Problems of Authentication of the Declaration of Intention of Co-Owners

Authors

  • Inga Kudeikina

Abstract

Co-owners must take account of various legal and factual encumbrances. One of the encumbrances is the requirement as to the agreed declaration of intention by all co-owners in transactions involving joint property. Pre-emptive rights related to the alienation of undivided interest to a person other than the co-owner should be also viewed as an encumbrance. The encumbrances take the form of a special document (consent, waiver) that would establish the intention of a co-owner. Such a document gives rise to legal consequences for both the giver and the co-owner in whose favour or against whom it is issued as well as third parties. It should be concluded that the document presenting a co-owner’s intention per se is a unilateral transaction that is fully subject to the principle of freedom of contract prevailing in private law. According to the general rules, a co-owner is free to choose the form of its declaration of intention: oral or written, public or private. However, for several reasons, this matter is not as simple as it might seem. According to laws, certain types of transactions (e.g., real estate transactions) are subject to public registration and, therefore, a public document is demanded by the law-giver. Another aspect to be considered is that written documents are essential for the procedure of proof in the countries adhering to Continental European law. Consequently, the legal nature of a document establishing a co-owner’s intention becomes vital. During the research, the author has analysed the form of a co-owners’ declaration of intention, focusing on the possibilities and necessity of authentication. The objective of the thesis is to research the legal criteria of authentication based on the existing laws insofar as those concern the recording of a co-owner’s intention. To this end, both descriptive and analytical methods have been employed to analyse the applicable legal framework. The author has relied on laws and opinions of legal scholars.

DOI: 10.5901/ajis.2014.v3n3p205

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Published

05-08-2014

Issue

Section

Research Articles

How to Cite

Problems of Authentication of the Declaration of Intention of Co-Owners. (2014). Academic Journal of Interdisciplinary Studies, 3(3), 205. https://www.richtmann.org/journal/index.php/ajis/article/view/3408