در خیلی از موارد بنا به دلایل مختلف دو یا چند نفر که به صورت مشترک صاحب یک ملک هستند، اقدام به افراز ملک مشاع می کنند.
دلایلی از جمله: فروش ملک، عدم هماهنگی و همکاری افراد با همدیگر، استقلال و غیره می تواند
مقدمات افراز ملک مشاعی را فراهم کند.
به همین دلیل و بنا بر نیازهای مختلف جامعه برای جلوگریری از مشکلات و حل قانونی این مشکل،
قانونگذار قوانین و شرایطی را برای این کار اختصاص داده است که در ادامه با هم به بررسی آن ها خواهیم پرداخت.
افراز به معنای جداکردن چیزی از چیز دیگری می باشد و در واقع به معنی تفکیک و تقسیم چیزی مال هم می باشد.
به عبارتی دیگر می توان گفت که افراز یعنی جدا کردن سهم مشاع هر شریک یا شرکای ملک مشاع از حالت اشاعه.
بیشتر بخوانید: تصرفات شریک در مال مشاع
در یک دسته بندی می توانیم افراز را به دو دسته: 1- افراز اجباری و 2- افراز به تراضی تقسیم کنیم:
افراز اجباری: به حالتی گفته می شود: که در آن شرکا با توجه به حکم دادگاه و یا اداره ثبت مجبور به قبول مال مشاع شده باشند.
حکم دادگاه می تواند بر اساس خواسته یکی از شرکا یا به سایر دلایل قانونی باشد،
مثلا: در مواردی که ملکی به طور مشترک در تصرف اداره ای دولتی و شخص ثالثی باشد،
اداره مسکن و شهرشازی می تواند درخواست افراز ملک مشاع را بدهد.
در این حالت افراز صورت خواهد گرفت.
افراز به تراضی: به حالتی از افراز کفته می شود که شرکا به صورت توافقی اقدام به افراز ملک مشاع می کنند.
در کل می توان گفت: برای افراز ملک مشاعی به جز موارد زیر مانع دیگری وجود ندارد:
1- تقسیم به موجب قانون منع شده باشد.
2- شرکا در ضمن قرارداد شرط عدم تقسیم کرده باشند.
3- هر گاه تقسیم متضمن از مالیت افتادن مال یک یا چند نفر از شرکاء باشد تقسیم ممنوع است. (اجبار به تقسیمی که مشتمل بر ضرر باشد، نیز جایز نیست.)
4- در مورد این ملک سند مالکیت معارض وجود نداشته باشد.
نسبت به چنین ملکی تا زمانی که رفع تعارض نشده اقدام به افراز نخواهد شد.
5- تقسیم ملک از وقف جایز است ولی تقسیم موقوفه بین موقوف علیهم جایز نیست
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