Some heirs put a wall on the terrace of the inherited house so that other relatives do not use it and justice forces them to tear it down and return it to its original state because it is not part of the inheritance

The Provincial Court of Jaén has rejected the appeal of three heirs who closed access to a terrace with a partition that had been used for more than sixty years by other members of the same family. He confirms that said terrace was not part of his inheritance and that it was improperly occupied. Therefore, they must demolish the work, restore the original door and assume the costs of the trial.

As detailed in the ruling of June 26, 2025, several branches of heirs live together in the family home on separate floors. One of the groups, upon taking possession of the ground floor, decided to close access to a terrace located at the top, which was accessed through a door that had always been in use. The affected party alleged that this terrace, the attached patio and the dividing wall were built by the common grandmother in 1962 and had always been enjoyed by her family, without opposition or interruptions.

Given the closure of the door and the new heirs taking over the terrace, they filed a lawsuit requesting that the ownership of those elements be recognized and that the demolition of the work be ordered.

The court recognized the property by inheritance and peaceful use

The Court of First Instance No. 2 of Martos declared that the terrace, the patio and the wall were private elements, built by the deceased and intended for the exclusive use of her daughter and descendants who had used them for years. It was considered proven that for more than six decades a public, peaceful and uninterrupted use had been exercised, thus consolidating a valid property right, even though it was not expressly registered in the Property Registry.

The ruling ordered the defendants to demolish the partition that closed the original door, eliminate the materials used and return access to its previous situation.

The Court confirmed that they did not have the right to occupy that part of the home

The Provincial Court of Jaén fully confirmed the first instance resolution, citing article 348 of the Civil Code, which defines property as “the right to enjoy and dispose of a thing without more limitations than those established by law”, and remembering that the peaceful, public and prolonged exercise of an asset can be decisive in confirming its ownership.

In this case, he highlighted that the new heirs did not provide evidence that they had property rights over the terrace, the wall or the patio. Neither the will nor the hereditary partition recognized ownership over those elements, nor did they prove sufficient acts of possession to allow them to be acquired by ordinary or extraordinary usucaption (articles 1957 et seq. of the Civil Code).

However, the plaintiffs conclusively demonstrated that the terrace was built by their common grandmother in 1962, which was used since then by her daughter and, subsequently, by the current heirs. Historical photographs, a notarial record, technical and testimonial reports were provided that corroborated the continued and exclusive use of the space by a single branch of the family.

Likewise, according to Supreme Court jurisprudence in conflicts between co-owners or heirs, inherited possession, when accompanied by acts of continuous use, conservation and maintenance, can consolidate ownership even if there is no express registration title, as long as there is no opposition or interruptions for decades (for example, STS 806/2008, of September 15).

The Court considered it disproportionate that, in the absence of a title, the appellants attempted to appropriate a space by the mere fact of having closed the door, and described this act as a “unilateral dispossession of a part not included in their hereditary portion.”

For all these reasons, it supported the court’s decision to order the demolition of the wall and the replacement of the original access.