The Supreme Court upholds the use of joint ownership of property in turns

It is common, especially among family members when inheriting a property, for the property to be registered in the names of the various heirs, each according to his or her share of the property, without the entire property being awarded to one of the heirs, or without one heir paying his or her share to the others and keeping the entire property for himself or herself. This is because, on many occasions, the habitual residence of the deceased is his or her only asset, so that there will be no more to distribute, which would allow the property to be awarded exclusively to only one of the heirs.

In these cases, a community of property is created, where several owners own the same property in pro indiviso. The Civil Code regulates these situations, providing that no owner may use the common property in a way that prevents others from using it or harms the other owners. Nor may he make any alterations to the property without the consent of the others.

The legal criterion, until now, was that in any case, the individual use of a dwelling by only one of the co-owners, without the consent of the rest, was not legitimate because it went precisely against the nature of the community of property.

This criterion is modulated by the recent Judgment of the Civil Chamber of the Supreme Court of 9 December 2015, which states the following doctrine: “The application of shifts of occupancy with exclusive use for successive and recurring periods will be considered a fair formula and applicable to cases of joint owners of dwellings when joint or shared use is not possible or advisable and the community or a joint owner so insists”.

The Court points out, however, that The circumstances of each specific case will have to be taken into account, assessing, among other issues, the good or bad relations between the co-owners; the possible state of need of one of them, who could have the property as the only place where he/she can reside with dignity; among others.

In the absence of an agreement between the parties, the court will have to determine the duration of the turns of use of the property, taking into account the circumstances of the case. Thus, it is not the same to fix the shifts in which 3 cousins will have to share a house belonging to a deceased relative without descendants, as it is to fix the shifts between 2 siblings to exploit a business premises inherited from their father.

On the other hand,it is a general principle of our law that no person can be obliged to remain in a co-ownership regime against his will, so that any of the owners can at any time bring an action for division of the common property. In this case, the courts would be called upon to allow any of the co-owners to buy their share of the property from the others, or to put it up for auction and share the price obtained proportionally among all of them, provided that there are bidders.

For any of the solutions and in the absence of agreement between the parties, you will have to go to court, so as always, we recommend that you contact a lawyer you trust who will analyse the circumstances of your specific case and advise you on the viability of your claim and the best way to obtain the desired result.