2023-12-15 09:17:30
From the A wise man, the human race has evolved to what the current man and woman are, a parallelism that we could compare with the “species” of squatters. We have gone from those people who, without having any contractual or kinship relationship with the owner of the property, occupied a home, to the situation in which one of the heirs uses the parent’s home before the inheritance is distributed, causing harm. to the rest of the heirs. Another type of squatter, the same problem.
Normally, this type of squatter tries to justify the use of the home in the unwritten will of his parents, which is not a title that legitimizes its use. It is immaterial whether a person has cared for their parents or not, since the only thing that could legitimize this action is if they had expressly attributed it.
At this point, we can ask ourselves if current legislation offers us some type of solution to evict the tenant-squatter, who coincidentally is also your family member, and the answer is affirmative.
Eviction due to precariousness: two to three years of waiting
As the courts have been remembering, all co-heirs have the right to possess the assets left in the inheritance, so, if the person who is occupying the home or premises does not have any title or pay rent for the use of the property, the rest of the Co-heirs may require the occupant to leave the property empty.
The first step would be to contact the tenant-squatter and urge him that, if he wants to continue using the home before the inheritance is distributed, he must pay rent to the rest of the heirs. The normal thing is that they do not answer or refuse to pay, alluding to an alleged and unwritten will of the parents. After a while, and if you refuse to leave the home, the so-called precarious eviction action would have to be initiated.
The eviction action due to precariousness is a personal action. This is important since, as it is not a real action, the thirty-year statute of limitations does not apply. As it is a personal action, the statute of limitations is five years, which highlights the importance of initiating this action as soon as possible.
Furthermore, the passage of time benefits him, so we must prevent him from consolidating rights and the situation could become complicated if there were minors during the time in which he is occupying the home.
This is an action in which, basically, the illegal occupation of the home is exposed to the Court and, as happens when the tenant does not pay us the rental income, the corresponding eviction is carried out. In these cases, the duration of the precarious eviction procedure, taking into account that these do not end until the squatter is evicted, can be two to three years, so there is no need to delay its start.
But what about the expenses?
Another big question is related to housing expenses, such as supplies, the community of owners or the IBI. Although the heir-squatter enjoys the home exclusively, all the heirs They must continue paying the expenses of the propertysince the contribution to the payment of general expenses constitutes an obligation imposed on the owners of the home, not on the users.
The STS of May 25, 2005, rec. 3698/1998, declared: “…according to article 9.5 of the Horizontal Property Law, the contribution to the payment of general expenses constitutes an obligation imposed not on the users of a property, but on its owners, and, in addition, Its compliance is the responsibility of these not only for the use of its services, but also for its adequate maintenance.”
Likewise, can the rest of the heirs claim any compensation from the heir-squatter for the damage caused by the illegal use of the home? The answer is affirmative, and could be quantified in the amount that could be obtained if the home were rented to a third party.
What would be the conclusion?
From these lines it can be deduced that the Law puts in our hands an effective tool to prevent the abuse of any of the heirs over the assets. In this case, the occupation of the home before the distribution of the inheritance causes serious damage, since on the one hand the home deteriorates due to its poor maintenance, and on the other hand it prevents being able to rent or sell the home to third parties. Therefore, our recommendation is to always act as soon as we become aware of this situation.
Antonio Martínez Mosqueralawyer specialized in inheritance law.
#heirsquatter #heirs #unallocated #home #Legal