On December 9, 2015, a Supreme Court statement came to set doctrine on the use of community members from a common housing. Due to the common event that takes place, when a legacy is still of undivided ownership, instituting a community of goods, coinheritors need to issue a fair formula that allows everyone to enjoy the common good, so that the interest of neither is left disadvantaged.
So far, the jurisprudence had stated that, under the rules of property community, the use of common property by one of the inheritors is illegitimate.
Therefore, the Supreme Court has to define as a new doctrine that “the implementation of occupation shifts exclusively for successive and recurrent periods shall be regarded as a fair formula and applicable to communal housing cases when there is no option for possible or advisable solidarity or shared community or any community member so urge”.
This statement is motivated by the facts that a common housing, in which several villagers, being mother and children after the death of father, have exercised action on regulating the use of the family home by alternate and successive turns against another member, the daughter and sister of the plaintiffs.
Therefore, the rules of community property of art. 394 CC shall be applied, which requires that each participant may make use of the common elements, provided that the solution is the solidary enjoyment of the property by all community members, and does not prevent the rest from the use these according to their rights.
Still, it has been pointed out that this solution has to be modulated under specific circumstances, as in this case, where in an indivisible housing the coexistence of partners is impossible.
In the abovementioned case, now the difficulty to face is determining what fees should be adopted for the use and enjoyment of the property, as for the siblings the distribution will be always the same, but the wife of the deceased must be vented in the process of liquidation of the common heritage. The Supreme Court has considered that it the appropriate use and enjoyment of successive and chronological housing will be arranged, by giving the mother a share of 33.33%, until there is final judgment, and from that day shall be calculated an annual use of the housing and the further rotation of the involved individuals after a single drawing.
If you find yourself in a similar situation to the one exposed in the article, or need advice regarding an issue of inheritance, it would be advisable to contact the law firm DAEMI ZABALZA & ASSOCIATES, who can inform you of your rights as a community member and can defend your interests if necessary.