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Selling guide
Avoiding a partition auction
Two or more owners want to end their joint ownership and cannot find a solution. What a partition auction means, what applies in divorce and in a community of heirs, and which alternatives exist.
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In short. Any co-owner and any co-heir can apply for a partition auction; no court judgment is needed. It can be avoided if everyone agrees on another route: selling together on the open market, one person taking over the others' shares against a pay-out, or physically dividing the plot. Without agreement, the court decides. For spouses there are protective rules that can postpone the proceedings but, as a rule, do not prevent them permanently. Whether a sale on the open market brings more, you can calculate before applying with a market value estimate.
What is a partition auction?
A partition auction ends a co-ownership through a court auction. Its basis is the right to demand dissolution: every co-owner can demand at any time that the community be dissolved (§ 749 para. 1 BGB (German Civil Code)). If the item cannot be divided in kind, plots are dissolved by compulsory auction and division of the proceeds (§ 753 para. 1 BGB). The proceedings themselves are governed by §§ 180 ff. of the Compulsory Auctions Act (ZVG).
An enforceable title is not required (§ 181 para. 1 ZVG (Compulsory Auctions Act)). However, the applicant must be entered in the Grundbuch (land register) as owner or be the heir of a registered owner (§ 181 para. 2 ZVG).
The local court in whose district the property is located is responsible. According to Service Berlin, the local courts of Charlottenburg, Köpenick, Lichtenberg, Mitte, Neukölln, Pankow, Schöneberg, Spandau, Kreuzberg and Wedding are responsible in Berlin, each for its own court district. The federal states publish dates on the joint ZVG portal.
Who can apply?
Every co-owner, even if they own only a small share. The others cannot stop the application by majority decision, because the right to demand dissolution belongs to each co-owner individually.
The same applies in a community of heirs. Every co-heir can demand the division of the estate at any time (§ 2042 para. 1 BGB (German Civil Code)), and the rules on division by sale apply accordingly (§ 2042 para. 2 BGB). More in the guide Property in a community of heirs.
The right can be excluded only to a limited extent. Even if it is excluded by agreement, dissolution can still be demanded for good cause (§ 749 para. 2 BGB (German Civil Code)). A testator can exclude division by testamentary disposition; as a rule, such a provision ceases to apply 30 years after the death (§ 2044 BGB).
What protection is there in a divorce?
In 2022, the Federal Court of Justice ruled that a partition auction of the marital property is not generally inadmissible, even during separation. What matters is the weighing of both parties' interests. The spouse who does not want the auction is not without protection: they can raise objections under §§ 1365, 1353 para. 1 sentences 2 and 242 BGB (German Civil Code), namely in third-party opposition proceedings (§ 771 ZPO (Code of Civil Procedure)). In addition there is enforcement protection within the proceedings themselves (§ 180 para. 2 and 3 ZVG (Compulsory Auctions Act), § 765a ZPO).
On § 1365 BGB (German Civil Code): a spouse may only undertake to dispose of their assets as a whole with the other's consent. According to the Federal Court of Justice, even the application for a partition auction needs the other spouse's consent if the co-ownership share is the applicant's entire estate (BGH, order of 14 June 2007, V ZB 102/06). This applies under the statutory marital property regime.
The Compulsory Auctions Act also provides a time brake:
- A co-owner can apply for a temporary stay of no more than six months if this is appropriate after weighing the interests. The application may be repeated once (§ 180 para. 2 ZVG (Compulsory Auctions Act)).
- If only spouses, former spouses or civil partners are involved, the stay can be repeated several times where the welfare of a shared child is seriously at risk (§ 180 para. 3 ZVG (Compulsory Auctions Act)).
- In total, the proceedings may not be stayed for longer than five years (§ 180 para. 4 ZVG (Compulsory Auctions Act)).
This buys time but does not resolve the dispute. Use it for a sale on the open market. More in the guide Selling a property in a divorce.
What speaks against the auction?
In a sale, the owners set the price. In an auction, they give that up.
- The value is set for you. The court sets the property value, if necessary with experts (§ 74a para. 5 ZVG (Compulsory Auctions Act), applicable by analogy via § 180 para. 1 ZVG).
- Encumbrances count. For the minimum bid, the rights that encumber the applicant's share count, as do the rights that rank ahead of or equal to them (§ 182 para. 1 ZVG (Compulsory Auctions Act)). If one share is more heavily encumbered, this is balanced out (§ 182 para. 2 ZVG).
- The price is only known on the day. The proceeds can be below market value. How far below cannot be said in advance.
- Let properties. Normally, the successful bidder has a special right to terminate the tenancy (§ 57a ZVG (Compulsory Auctions Act)). In a partition auction, this does not apply to let property (§ 183 ZVG).
You can find out the costs and duration of the proceedings from the responsible local court.
What alternatives are there?
Selling together on the open market
The co-owners can only dispose of the jointly owned item as a whole together (§ 747 sentence 2 BGB (German Civil Code)). All of them must therefore agree to the sale. The purchase contract needs notarial certification (§ 311b para. 1 BGB). The proceeds are then divided among the parties. The property is marketed with a brochure and viewings, and the price is fixed at the notary appointment. The process is described in the guide Selling a property in Berlin.
Buy-out and takeover
One party takes over the others' shares and pays them out. This requires two things: a value that everyone agrees on, and financing for the pay-out. The pay-out amount can be raised through a loan, which the bank usually secures against the property. This transfer also requires notarial certification. Real estate transfer tax law provides exemptions for co-heirs dividing an estate (§ 3 no. 3 GrEStG (Real Estate Transfer Tax Act)) and for a former spouse in the property settlement after a divorce (§ 3 no. 5 GrEStG). Whether they apply in your case, clarify with a tax adviser.
Physical division
Division in kind takes statutory priority: it takes place if the item can be split into parts of the same kind that correspond to the shares, without reducing its value (§ 752 BGB (German Civil Code)). That is not possible with a single flat. With a multi-family building or a large plot it may be: the co-owners can restrict the co-ownership by contract so that each owns a specific flat (§ 3 para. 1 WEG (Condominium Act)). Each then owns their unit. Whether this is possible in a given case is for a notary and specialists to check.
Selling your share to a third party
Every co-owner can dispose of their share (§ 747 sentence 1 BGB (German Civil Code)). Anyone who sells their co-ownership share or their inherited share leaves the community. Selling an inherited share needs notarial certification (§ 2033 para. 1 BGB), and the other co-heirs have a right of first refusal (§ 2034 para. 1 BGB) that they can exercise within two months. The buyer of a share does not acquire a flat for their own use and steps into the seller's place in the community, which limits the pool of interested buyers.
Worked example with assumptions
All figures are assumptions and are no indication of usual auction proceeds.
- Owner-occupied flat jointly owned by two people, 50 per cent each
- Achievable price in a sale on the open market (assumption): €600,000
- Winning bid at auction (assumption): €480,000
- Outstanding land charge (assumption): €150,000
Open market: €600,000 minus €150,000 gives €450,000, €225,000 per person. Auction: €480,000 minus €150,000 gives €330,000, €165,000 per person. The difference in this example is €60,000 per person. In an auction, procedural costs would be added; in a sale on the open market, the agent's commission.
How to proceed in Berlin
- Read the Grundbuch (land register) extract. It shows ownership, land charges and registered rights such as a right of residence or usufruct.
- Establish the value. A shared figure is the basis of any agreement. How methods and expert reports differ is explained in the guide Valuation in Berlin. Our assessment: Property valuation in Berlin.
- Have legal questions clarified in advance. In a divorce this includes family law; in a community of heirs, a look at the will.
- Put the documents together. Which papers a buyer will want to see is listed in the guide Documents for selling a property.
- Record the agreement in writing. A sale, pay-out and division all need the notary. The notary certifies what you have negotiated beforehand.
For questions on market value and selling, reach us via Contact; you can start a valuation under Sell.
Legal notice. This article reflects the position as of 20 October 2026 and is intended for initial orientation. It does not replace legal or tax advice in the individual case. As estate agents we may not and do not wish to provide legal advice. For binding information, please contact a lawyer, a notary's office or a tax adviser.
Sources
- § 180 Compulsory Auctions Act (ZVG), compulsory auction to dissolve a community
- § 181 ZVG, application without title, registration of the applicant
- § 182 ZVG, minimum bid
- § 183 ZVG, letting or leasing
- § 57a ZVG, successful bidder's right of termination
- § 74a ZVG, setting the property value
- § 747 BGB (German Civil Code), disposal of share and item
- § 749 BGB (German Civil Code), right to demand dissolution
- § 752 BGB (German Civil Code), division in kind
- § 753 BGB (German Civil Code), division by sale
- § 311b BGB (German Civil Code), contracts concerning plots
- § 1365 BGB (German Civil Code), disposal of assets as a whole
- § 2033 BGB (German Civil Code), co-heir's right of disposal
- § 2034 BGB (German Civil Code), co-heirs' right of first refusal
- § 2042 BGB (German Civil Code), division among co-heirs
- § 2044 BGB (German Civil Code), exclusion of division
- § 771 Code of Civil Procedure (ZPO), third-party opposition action
- § 765a ZPO, enforcement protection
- § 3 Condominium Act (WEG), contractual grant of special ownership
- § 3 Real Estate Transfer Tax Act (GrEStG), general exemptions from taxation
- Federal Court of Justice, order of 16 November 2022, XII ZB 100/22, partition auction during separation
- Service Berlin: compulsory auction, responsible local court
- ZVG portal of the federal states, auction dates
Read more
Frequently asked questions
Partition auction: frequently asked questions.
Answers as of: 20 October 2026
Who may apply for a partition auction?
Every co-owner and every co-heir, even with a small share. They must be entered as owner in the Grundbuch (land register) or be the heir of a registered owner. No enforceable title is needed, and the other parties cannot stop the application by majority vote.
Can I prevent the partition auction in a divorce?
Not as a rule. The Federal Court of Justice does not regard it as generally inadmissible, even during separation. You can raise objections, for example under § 1365 BGB (German Civil Code), and apply for enforcement protection. Whether this succeeds in your case is decided by the court after weighing both parties' interests.
How long can the auction be postponed?
A co-owner can apply for a temporary stay of up to six months and repeat the application once. For spouses, former spouses and civil partners, repeated applications are possible where the child's welfare is at risk. In total, the proceedings may be stayed for no more than five years.
Can a will rule out a partition auction?
Yes, within limits. A testator can exclude the division of the estate or of individual items, or make it subject to a notice period. As a rule, such a provision ceases to apply 30 years after the death. Division can still be demanded for good cause, because § 2044 BGB (German Civil Code) refers to § 749 para. 2 BGB.
What happens to the land charge in a partition auction?
The minimum bid depends on the rights that encumber the applicant's share and on the rights that rank ahead of or equal to them. Registered land charges therefore feed into the terms of the auction. How this looks for your property is shown by the Grundbuch (land register) extract together with the court documents.
What applies if the property is let?
In an ordinary compulsory auction, the successful bidder may terminate the tenancy within the statutory notice period (§ 57a ZVG (Compulsory Auctions Act)). In a partition auction, this provision does not apply to let property (§ 183 ZVG). The successful bidder therefore has no special right of termination under this rule.
Which local court is responsible in Berlin?
The local court in whose district the property is located. Service Berlin lists Charlottenburg, Köpenick, Lichtenberg, Mitte, Neukölln, Pankow, Schöneberg, Spandau, Kreuzberg and Wedding. The court registry can tell you which one is responsible for your address. Dates are listed on the ZVG portal of the federal states.
May I sell my share to a third party?
Yes, every co-owner may dispose of their own share. Selling an inherited share requires notarial certification, and the other co-heirs have a right of first refusal that they can exercise within two months. The buyer of a share steps into the seller's place in the community, which limits the pool of interested buyers.
Is a co-owner's buy-out exempt from real estate transfer tax?
That depends on the situation. The law provides exemptions for co-heirs dividing an estate and for a former spouse in the property settlement after a divorce. A tax adviser should check whether the conditions are met in your case before the notarial deed.
What would your property fetch on the open market?
We establish the market value and calculate the sale alongside the auction.