Who has the right to use and enjoy an inherited home?
Inheritances are not without problems, and when the rights and assets of each heir are not clearly defined in a will. It is common for some assets to be assigned in co-ownership in favor of several heirs. If it is a home, the question arises as to who has the right to use and enjoy it in that case.
It may also happen that, by virtue of inheritance, the ownership of the dwelling is assigned to an heir and the usufruct to another person, in which case, the question also arises as to the extent of the usufructuary’s right.
In this article, we are going to analyze the different scenarios and try to answer the most common questions.
When can there be a conflict over the use and enjoyment of an inherited home?
There are two main cases in which there may be doubt or conflict when determining who has the right to use and enjoy the inherited home and what scope that right has:
- When the property is left in proindiviso to several heirs. That is, when the right of each one consists of a percentage of the total property, in this case the house. This is common when the deceased only has one house that is inherited by all their children equally, for example. In that case, it is possible that one of the siblings is living in the house at the time of death, or that one needs it and does not know if he or she can use it.
- When, by virtue of the inheritance. The bare ownership of the dwelling corresponds to one heir and the use and enjoyment, in the form of usufruct, to another. This is usually the case with inheritance rights in favour of the widowed spouse. For example, which consist of a lifetime usufruct over a percentage of the total inheritance. It is possible that the heir to the bare property is not very clear about his rights.
Who has the right to use and enjoy an inherited home?
The answer to this question will depend on the case at hand:
Who has the right to use and enjoy a home inherited in pro-indiviso?
If several siblings inherit a co-owned home. And one of them already lives in it or wants to do so, the situation is as follows:
- The brother who lives in the house is in precarious condition. This means that there is no title that gives you an exclusive right in your favor to live there without the consent of the other co-owners. And therefore they can ask you to vacate it at any time.
- The situation of the sibling who lives in the house or who wants to live in it can be solved by setting up a lease on the house. So that the occupant pays rent to his siblings. However, you can’t force others to accept that solution.
- If, in spite of the above, a brother persists in his intention to live in the house without paying rent or acquiring their respective portions from the others. The other brothers will have the right to evict him by exercising an action for eviction on the grounds of precariousness.
- No one can be forced to remain in a proindiviso. Unless there is a period of non-division (which can last up to 10 years, extendable). And that is why the law contemplates the action of division of the common property. Which may be requested by any of the siblings at any time, and which seeks the division of the house. But since the house is an indivisible asset. It will have to be sold at public auction and the money will have to be divided among all the brothers.
- Any sibling has preference over a third party purchaser to keep the portion that belongs to the brother he wants to sell, paying the price that the brother asks of a third party.
Who has the right to use and enjoy the inherited home if there is usufruct?
The usufruct consists of a right to use and enjoy an asset. So, obviously, it will be the usufructuary of the home who has the right to use and enjoy it.
However, the scope of this right will depend on the nature of the usufruct that has been constituted:
- If the deceased left a usufruct in favour of a particular person in his will. And provided that on the death of that person the usufruct would be transferred to a third person, his wishes must be respected. In this case, the usufruct will have the scope defined by the testator in his will. The heir who inherits the bare property may sell the property and dispose of it in any way. Provided that this does not alter the usufructuary’s enjoyment of the right of usufruct.
- If the usufructuary is the widowed spouse, who enjoys the home as part of his or her legitimate inheritance. The usufruct is for life, and will be extinguished when the widowed spouse dies. At that time, the bare owner will gather in his person the full ownership of the dwelling. That is, the ownership of the right of ownership and the use and enjoyment.
The widowed spouse’s right to a usufruct over a certain portion of the inheritance. nd is something that the testator must respect when making a will.
Who pays for the expenses of the inherited home?
Whatever the reason why a person is occupying an inherited home that does not fully belong to them. They will have to pay the expenses associated with its use:
- If a lease has been formed. Any distribution of the payment of costs may be decided, provided that there is agreement between the parties.
- In the absence of an agreement. It is understood that the occupant pays the expenses arising from the use. Such as utilities, ordinary community expenses and repairs derived from normal wear and tear due to the use of the property. The owners will share equally (including the one who is occupying the property) the expenses associated with the property. Taxes, mortgage (if applicable), extraordinary community expenses, home insurance and improvement works, if they are carried out.
- In the case of usufruct, the usufructuary will also have to pay the property tax.