The buyer of half a house cannot evict the person who occupies it. This has been decided by the Provincial Court of Cantabria, which has revoked the eviction that weighed on a woman whose ex-husband, co-owner of the other half of the property, had allowed him to use it for free. The sentence can be consulted at this link.
In the present case, the use of the disputed dwelling was awarded to the woman after the couple’s divorce, although the ownership was 50% of both. As a result of a debt from her, his quota passed to a real estate services company. But the ex-husband continued to keep the other half of the property, allowing his ex-wife to continue occupying it, among other reasons because the daughter they have in common and their granddaughters stayed there to visit.
However, the company requested the eviction of the woman because it understood that she had no title to occupy it. In the first instance, a Santander court sentenced her to eviction, warning her of the launch to which she would proceed if she did not leave the property free.
But the Provincial Court of Cantabria has reversed the sentence on the understanding that if the ex-husband can use it for himself, “he can also introduce a third person in that use.” Thus, the magistrates reason that if the company cannot evict him, who is a co-owner, “neither can it evict whoever replaces him occupies the house.”
“That possession transferred would be illegal if it resulted in an exclusive use of the property”, that is, a use that would prevent society from using the home. But “the use that the defendant is making of the home is not exclusive because there is no evidence that the company also wants to use the home, and that the other community member (ex-husband), or the person to whom he / she has given free use of the home (your ex-wife), prevent this pretense of use ”.
To resolve the dispute, the Audiencia de Cantabria relies on the jurisprudence emanating from the Supreme Court, which has said that “the mere fact that the use of the thing by one of the community members is unique does not justify that the other community members exercise procedural remedies to put an end to it ”.
In other words, the Supreme Court understands that if a co-owner uses the common thing, the other co-owner cannot prevent it for the mere fact that he uses it alone. For such use to be illegal, it would need to violate a specific regulation agreed by the majority or, if it does not exist, to disregard the requirement made by the injured co-owner for use incompatible with his right. But “when the specific solidarity use of the thing benefits a community member and does not cause any relevant damage to another, any claim aimed at limiting that use must be rejected,” argues the jurisprudence.