Should we sell our jointly owned flat before a seriously ill co-owner dies?

Answer by the AvoConsulte editorial team

In practice, yes: selling while every owner can sign is much simpler. But if the ill owner is in their last illness, the law restricts the sale: it must be a genuine sale at a fair price.

If the sale happens after the death

The deceased's share passes to their heirs, including the two children, and the spouse if still alive. You would then need to:

• prove who the heirs are with a death and heirship deed (hujjat wafat) drawn up by notaries, complete the estate formalities and update the land title;
• have every heir, or their representative, sign the sale, which can take time if one of them is a minor or lives abroad.

Each co-owner may sell just their own share (article 59 of the Real Rights Code), but buyers usually prefer to buy the whole flat.

A sale during the last illness

Article 565 of the Code of Obligations and Contracts provides that a sale made by a sick person during their last illness to one of their heirs, with the intention of favouring them, is valid only if the other heirs ratify it (article 354). A sale to a non-heir is referred to article 355, which then limits the benefit to one third of what remains in the estate. And a gift made during the last illness is treated as a bequest (article 206 of the Personal Status Code). So:

• sell to an outside buyer at market price, and keep proof that the price was paid and how it was shared between the owners;
• avoid any sale at a token price, or to an heir without the others' agreement.

If the ill owner cannot travel

They can give a special power of attorney, drawn up by a notary, so that someone signs the sale for them, provided they are fully lucid when they sign it. See a lawyer or notary before signing a preliminary sale agreement.

This answer was written by the AvoConsulte editorial team and gives general information only: it is not legal advice. For your own situation, consult a lawyer.

Sources

1. Code des obligations et des contrats (texte réorganisé approuvé par la loi n° 2005-87 du 15 août 2005) OMPI – WIPO Lex
2. Code du statut personnel – De la donation (art. 201 à 206) Jurisite Tunisie
3. Code des droits réels – De l'indivision, dispositions générales (art. 56 à 71) Jurisite Tunisie