Co-owner paid the mortgage in Spain: who gets more on a sale?

This can happen to you. The home belongs to you and your former partner 50/50, and the court case to divide it is under way. Meanwhile you have been paying the mortgage, the property tax and the community fees on your own, year after year, while the other owner paid nothing.

So when the home is sold at auction, should the money be split as if you had both paid the same? A ruling of the Provincial Court of Málaga (Audiencia Provincial de Málaga, section 6, judgment no. 1204/2025 of 25 November 2025) answers exactly that. See whether it sounds like your situation.

Does a co-owner who paid the whole mortgage get more when the property is sold?

Not automatically, and not by changing the ownership shares. The court left the 50/50 registered shares as they were. What it allowed is something different: when the price from the sale is shared out, the mortgage instalments, property tax and community fees that only one owner paid can be taken into account. The amounts the other owner did not pay are deducted from his or her part and added to the part of the owner who did pay.

That is the short answer. The detail matters, because it depends on proof and on asking for it expressly. I go through the ruling step by step below.

What happened in the Málaga case

The two parties had bought the property together, each owning half, before their marriage. They had later been married under the community of gains regime (gananciales), but the court treated the property as separate property (bien privativo) of each of them in equal halves. It said the division action could go ahead in that procedure, without prejudice to any debts for improvements or expenses that either owner had paid for the property.

The court of first instance declared the co-ownership ended and ordered the property to be sold at public auction, open to outside bidders, with both parties allowed to bid. It also kept each owner’s share at 50%.

She appealed only that last point. Her argument was that the evidence of the mortgage payments had not been properly assessed, and that the defendant had not contributed in equal proportion to paying the mortgage on the shared property. So nobody was disputing whether the property had to be divided. The fight was about how to share the money afterwards.

Can the court change the 50/50 shares in a division of common property?

No, and the ruling is clear about it. The action used here is the actio communi dividundo, or acción de división de cosa común: the court action by which one co-owner asks to end a co-ownership (proindiviso, property held in undivided shares) when the others will not agree. In my guide on what to do when a co-owner refuses to sell a property in Spain I explain how that route works in practice.

The Provincial Court explains the limits of that action in these words:

“The action for division of the common property is not liquidating in the sense of compensation but only distributive, so that exercising that action entails nothing more than determining the distribution that is due.”

“la acción de división de la cosa común no es liquidativa en el sentido de compensación sino solo de distribución, por lo que el hecho del ejercicio de esa acción no conlleva sino la determinación de la distribución que proceda.”

It then adds an important nuance. The claim to settle the accounts between the owners can be joined to the division action when that is possible. In this case it was: the claimant also asked for payment of what corresponded to her through liquidation, relying on articles 393, 1358 and 1359 of the Civil Code.

Distributing the property is one thing, liquidating it is another

This is the heart of the judgment. The court separates two steps: who owns what share, and how the money is shared out once the property has been turned into cash.

“When liquidating the proindiviso through a sale at public auction, the decisive criterion for distributing the money obtained among the co-owners must not be limited to the formal registered shares, if that action is joined, but must take into account the effective contribution of each of them to the charges directly linked to the common property.”

“A la hora de liquidar el proindiviso mediante la venta en pública subasta, el criterio decisivo para distribuir el dinero obtenido entre los copropietarios no debe limitarse a las cuotas registrales formales si se acumula dicha acción, sino que debe atender a la contribución efectiva de cada uno a las cargas directamente vinculadas al bien común”

The court puts it in a single sentence:

“Distribution is one thing, and liquidation, once the property has been converted into money, is another.”

“Una cosa es la distribución y. otra la liquidación a partir de la misma y en tanto se convierte en dinero.”

In plain terms, each owner can keep the formal share, but when the sale price is liquidated, the payments one owner made alone can count, as long as they are directly tied to the property.

Is the presumption that both co-owners pay equally always valid?

No. The court starts from article 393 of the Civil Code. Under that rule, the charges and benefits of the common property are shared in proportion to each owner’s share, and the shares are presumed equal unless proven otherwise. But that presumption can be rebutted:

“This presumption, which is rebuttable (iuris tantum), is validly overturned when, as in the present case, sufficient documentary evidence is provided showing that one of the parties has alone borne, for more than a decade, the payments of the mortgage debt and other expenses inherent to the property, such as IBI and community fees.”

“Esta presunción, de carácter iuris tantum, queda válidamente desvirtuada cuando, como sucede en el presente caso, se aporta prueba documental suficiente que demuestra que una de las partes ha asumido en solitario, durante más de una década, los pagos de la deuda hipotecaria y otros gastos inherentes a la propiedad, como el IBI y las cuotas comunitarias.”

IBI (impuesto sobre bienes inmuebles) is the annual property tax. The ruling therefore does not rest on one owner simply saying that he or she paid. It rests on documents.

How do you prove you paid the mortgage on your own?

In the Málaga case the appeal relied on two kinds of evidence. The first was the bank’s mortgage amortisation schedule (cuadro de amortización, document no. 8). According to the claimant, it showed that from 2011 to 2023 she was the only one who kept paying the mortgage, while the defendant stopped.

The second was documents from an earlier forced-sale procedure (ejecución forzosa, documents no. 10 and 11). She said they showed the defendant had not paid the mortgage for more than a decade. The court tied this evidence directly to the liquidation. It found that the appeal showed, through the bank’s schedule and the court enforcement documents, that from 2011 to 2023 the claimant had substantially reduced the mortgage capital.

So if you want your solo payments to count, you need to be able to show them on paper. Bank statements, the lender’s schedule and any court or enforcement documents are the kind of material to gather before the hearing, not after.

Why the mortgage payments count when the property is sold

The court gives a clear reason for including the mortgage in the liquidation:

“That mortgage debt is directly connected with the common property, since it encumbers the property and affects its net value. The payments made to repay it must be regarded as a capital investment for the benefit of the whole co-ownership.”

“Dicha deuda hipotecaria está directamente conectada con la finca común, ya que grava el bien y afecta a su valor neto. […] los pagos destinados a su amortización deben considerarse inversión patrimonial en beneficio del conjunto de la comunidad.”

It also says what would happen if those payments were ignored:

“Ignoring this financial contribution and keeping an equal distribution after the division of the funds obtained at the auction would mean sanctioning an unjust enrichment in favour of the co-owner who has not contributed.”

“Ignorar esta aportación económica y mantener una distribución igualitaria posterior a la división de los fondos obtenidos en la subasta supondría consagrar un enriquecimiento injusto en favor del comunero que no ha contribuido”

If your co-ownership has a mortgage on it, my guide to dissolving a co-ownership with a mortgage in Spain covers how the loan is dealt with when the co-ownership ends.

Can I also recover the property tax (IBI) and community fees I paid alone?

Yes, according to this ruling, provided you claim them. The court did not limit itself to the mortgage. It said that the amounts the claimant had borne alone for IBI and community fees, if they existed, should also be passed on in the final liquidation, because she had claimed them.

The reason is that these expenses follow the property. The court calls them objective charges (cargas objetivas) that come simply from owning the property, whose function is to keep it in good condition, legal and usable. They are not personal obligations detached from the property. And it says what to do with them:

“They must be deducted proportionally from the amount obtained at the auction before the remainder is distributed among the co-owners, as happens with the mortgage charges that have been paid.”

“deben ser descontadas proporcionalmente del importe obtenido en subasta antes de distribuir el remanente entre los copropietarios, al igual que ocurre con las cargas hipotecarias satisfechas.”

Can unpaid maintenance between ex-partners be added to the calculation?

No. The ruling sets a limit here. Not everything one party owes the other can be mixed into the liquidation of the co-ownership. The court excluded the unpaid maintenance payments (pensiones alimenticias) that had been claimed, because they have no connection with the property or with the co-ownership over it.

“Maintenance obligations arise from a different legal relationship, of a personal nature, which must be resolved within the proper framework of enforcement of family judgments, without contaminating the property distribution of the proindiviso.”

“Las obligaciones alimenticias derivan de una relación jurídica distinta, de naturaleza personal, que debe resolverse en el marco propio de ejecución de sentencias de familia, sin contaminar la distribución patrimonial del proindiviso.”

The dividing line is easy to remember. Expenses tied directly to the property go in. Personal debts that have nothing to do with the co-ownership stay out. If you are separating and the home is part of the picture, my article on divorce and the family home in Spain may help.

When is the amount worked out?

It does not have to be closed in the main trial. The Provincial Court said that, since nothing had been liquidated at that point, nothing prevents the calculation from being made in the enforcement stage of the judgment (ejecución de sentencia), on the bases already set. For that reason it partly upheld the claimant’s appeal. The payments made by the parties on mortgages, charges, taxes and other burdens on the property must be taken into account for the liquidation and payment.

Summary: what the ruling allows

What the court ordered: the amounts one co-owner did not pay

The Provincial Court added a new paragraph to the operative part of the first-instance judgment:

“Once the property has been sold at public auction and in enforcement of the judgment, the amount obtained shall be distributed between the parties in the proportion that corresponds to each of them, deducting, in each case, the amounts that have not been paid by the respective co-owner as mortgage instalments, taxes associated with the property (including IBI), and other expenses or charges generated directly on the property and borne by the other co-owner. Those amounts shall therefore increase the share to be received by whoever has actually paid them, in accordance with the reasoning in the legal grounds of this decision.”

“Una vez realizada la venta del inmueble en pública subasta y en ejecución de sentencia, el importe obtenido deberá ser distribuido entre las partes conforme a la proporción que corresponda a cada una de ellas, deduciendo, en cada caso, las cantidades que no hayan sido satisfechas por el comunero respectivo en concepto de cuotas hipotecarias, tributos asociados al inmueble (incluido el IBI), y demás gastos o gravámenes generados directamente sobre la finca y asumidos por el otro comunero. Dichas cantidades incrementarán, en consecuencia, la parte a percibir por quien efectivamente las haya abonado, conforme a lo razonado en los fundamentos jurídicos de esta resolución.”

What this means if you paid the mortgage alone

The ruling does not say that the registered shares must change. It says that, when the price from the sale is liquidated, the payments made by only one owner can be taken into account when they concern the mortgage, IBI, community fees or other charges directly tied to the property. The amounts one owner did not pay and the other did are deducted from the first owner’s part and added to the part of the second.

So in a court-ordered division you cannot simply look at who appears as owner in the Land Registry. If you have paid expenses tied to the property for years, the key is to prove it with documents and to ask expressly for those amounts to be counted in the liquidation. Keep in mind that this is one decision of one provincial court, so how it applies to your case depends on the facts and the evidence you can produce.

A sale at auction is not the only way out. If one of you wants to keep the property, read my guide to buying out a co-owner of a property in Spain. I have studied thousands of co-ownership dissolutions in Spain, and I work with clients in English.