One of the most recurrent conflicts in the management of an inheritance occurs when one of the successors, who already resided in the family property, decides to maintain exclusive use of the home after the death of the parents.
What initially constituted a situation of consensual cohabitation, usually results in a legal dispute between co-heirs due to the lack of a title that justifies said permanence. And many heirs assume that, if they lived with their parents, that permission is inherited automatically.
However, the experts are blunt: that “tolerance” was a personal permission that dies with the deceased. At the time of death, the legal title disappears and the home becomes a hereditary community. This is stated by Manuel Hernández, director and founder of Vilchez Abogados.
Burofax as a legal switch
For the use of the house to be legal, authorization must be express from the new co-owners. If a brother occupies 100% of the home without the consent of the rest, he is committing an abuse of rights, regardless of whether the parents wanted him to stay there. Unless the will specifies a legacy of habitation or usufruct, the will of the deceased has no validity over the daily use of the property.
The key to resolving these conflicts lies in article 394 of the Civil Code. Although each heir can use the common things, he cannot do so “harming the interest of the community.” Preventing the house from being rented, sold or other heirs from entering automatically turns the resident brother into a precarious person.
“The moment you send a burofax saying ‘I do not authorize exclusive use’, any tactical permission is broken,” explains the specialist. Since that official notification, the situation changes radically. It is no longer a family favor, but rather an improper use of other people’s property. This allows the other siblings to demand retroactive compensation for the use of their part of the house from the date of the demand.
No right to ‘grace’ time
Although traditionally, justice used to respect the so-called ‘year of mourning’ or courtesy to allow the cohabitant to find a new home, today judges are being much more agile: if there is an official requirement, the right to stay disappears almost immediately.
In short, the law is clear: if you are an heir and you have not signed an authorization for your brother to live alone in your parents’ house, he has no legal title to be there. It is you, along with the rest of the brothers, who now hold the power to decide over the future of the property.