Exclusive use of the property of the undivided estate by the heir

Exclusive use of the property of the undivided estate by the heir

Exclusive use of the property of the undivided estate by the heir

Exclusive use of the property of the undivided estate by the heir. Legal claims: Rental fee, damages, petition for inheritance, accountability.

Exclusive use of the property of the undivided estate by a co-sharer

It is customary for one of the co-sharers of the undivided estate (to which he is entitled as a co-sharer). To make exclusive and exclusive use of an asset that is part of the undivided community of relict property. (to which all the other co-sharers are clearly entitled in terms of universality, without prejudice to the respective proportion).

This gives rise to the immediate need for the court to be required to carry out a procedural activity that would prevent damage to the other co-sharers and to the undivided estate as a whole.

We will briefly outline the possible procedural avenues for restoring the balance between the partners.


In order to exercise any action that aims to put an end to the occupation or use of an asset by a co-sharer.  Two basic extremes must be present when occupying or using a certain asset of the undivided estate:

  • the first is that the occupation or use is exclusive of the right of the other co-participants. (i.e. that the other co-participants do not receive or are deprived of the products or fruits generated by that occupation or use).
  • Second, it is required that this occupation or use, in addition to being exclusive, be exclusive, that is. That the occupant or user possesses or uses for himself regardless of the right of the co-participants to the thing as a member of the undivided community.

It should be clarified that this occupation does not have to be consented to by the other co-sharers. But they must reliably express their opposition. Since otherwise the principle of succession governs that such acts are carried out under a tacit mandate.

In order for consent to exist, it is necessary that the co-sharer is aware of the occupation or exclusive use by another co-sharer and also knows that he or she is a co-sharer. If either of these extremes is not present. There can be no question of consent to the occupation or use of the undivided thing.


In such cases there were various doctrinal discussions as to the demands that can be made to re-establish the respective order. The figures of protection of legitimate, evictions, vindication, etc., were rejected.

However, during the existence of the undivided community of property, a few actions are viable, including:

  1. Action to petition for inheritance, with the excluded or preferential degree having to prove their status as a co-sharer and request the delivery of possession of the inheritance.
  2. Action for fixing the rental fee. This action may be used to determine a monthly sum or for the periods that are provided by agreement of the parties. Taking into account the nature of the assets that are being used or used in an exclusive and exclusive manner without the agreement of the other co-participants. It will also be the fate of the thing.
  3. Action to claim damages. In this case, this action will restore all the sums for royalties lost retroactively, that is. From the opposition to the occupation or exclusive and exclusive use until the judicial establishment of the respective rental fee.
  4. Actions for claims for sums of money were also admitted, although to a more limited extent.
  5. In all cases, an action for accountability may also be requested against the co-participant who makes such exclusive and exclusive use to become aware of all the acts carried out, and carried out since the opposition and until the fixing of the rental fee or the filing of the action for accountability. Continuing accounts may also be provided for the future.

In the cases of deceased co-participants or whose vocation is subsequently recognized. They may make claims for damages for everything administered previously without their consent. And in the absence of knowledge of their hereditary vocation.

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