القيود القانونية على تصرفات الشريك في الملكية العقارية الشائعة وفقا للتشريع الجزائري

Abstract

This study addresses the topic of "Legal Restrictions on the Co-owner's Dispositions over Common Real Ownership under Algerian Legislation." Its central problem revolves around the extent to which the legislator succeeded in regulating the co-owner’s power of disposition in a manner that achieves a balance between the freedom of disposition and the protection of the remaining co-owners' rights to ensure the stability of real estate transactions. The study aims to monitor the substantive and procedural provisions capable of protecting common ownership from fragmentation, relying on both descriptive and analytical methodologies to deconstruct the legal texts. In the first chapter, the study concluded that the co-owner’s right over common ownership rests upon an intangible share granting them the freedom of disposition over it, whereas the validity of their disposition over a specific portion prior to partition remains contingent upon the outcome of such partition, pursuant to the doctrine of real substitution. The second chapter revealed that this freedom is restricted by civil mechanisms—such as pre-emption and redemption—to prevent injury, as well as by regulatory restrictions, such as the prohibiting clause on state-subsidized housing and the prohibition against the fragmentation of agricultural lands. All of these are subject to notarial oversight and an in rem real estate registration system crucial for the stability of transactions.