Commentary to article 222. Foreclosure on a share in the common property The Civil Code of the Republic of Kazakhstan
The commented article establishes the peculiarity of allocating a share in common shared joint ownership in comparison with the procedure for allocating a share provided for in Articles 218 and 221 of the Civil Code in cases of foreclosure on such a share by creditors.
The creditor has the right to demand the allocation of a share in the common property for foreclosure only if the other property of the debtor to whom the claim is addressed is insufficient to satisfy his claim. If the debtor has sufficient other property that can be foreclosed on, then foreclosure on the debtor's share of the common property is unacceptable.
If the debtor does not have enough other property to foreclose on, and the remaining participants in the common ownership refuse, at the request of the creditor, to purchase the debtor's allocated share of the common property and pay the debt to the creditor, or agree to purchase this share at a price that does not cover the amount of the debt, the creditor has the right to demand foreclosure on the debtor's share by selling this shares from public auctions in accordance with the procedure provided for by the civil procedure legislation.
If the allocation of the debtor's share in common ownership proves impossible or the other participants in common ownership object to such allocation, then according to clause 3 of the commented article, the creditor has the right to demand that the debtor sell his share to the other participants in common ownership at a price commensurate with the market value of this share, followed by the use of the proceeds to repay the debt. If the other participants in the common ownership refuse to buy out the debtor's share, then in accordance with paragraph 6 of art. 218 of the Civil Code, the court may decide to sell jointly owned property at public auction with foreclosure on the proceeds due to the debtor's share.
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The commentary was prepared within the framework of the scientific and practical research program of the Scientific Research Center of Private Law of the Kazakh State Law University.
Head of the working group on the preparation of the draft Civil Code of the Republic of Kazakhstan, Corresponding Member of the Academy of Sciences of the Republic of Kazakhstan, Professor Suleimenov M.K.
Deputy head Professor Basin Yu.G.
