A man who takes care of the house. Barcelona, ​​CataloniaDavid Zorrakino (Europa Press)

“He changed the lock of the house as soon as our father died so that we could not access the family house, that of all the brothers.” This is the testimony of Luisa (not her real name) who, along with the other heirs, had to go to court to evict her sister from her childhood apartment. The woman had been settled for three years. He had nowhere to go and this way, he said, he could take care of his parents. However, the other brothers were already paying someone to do this work. After his father’s death, he continued to live there with his mother. The final straw, Luisa says, was changing the locks on the property. A warning that he planned to stay in the apartment and ignore his brothers’ rights.

Cases of squatter heirs not exceptional, reports show Antonio Martinez, the lawyer who advised Luisa and her brothers. The typical case, he emphasizes, is that of the brother who believes he has the right to stay in the parental home because he takes care of his parents and does not own an apartment. “The reality is that this person does not have the economic capacity to rent or buy a house and uses his parents,” explains the lawyer of the Martínez Lafuente Abogados firm and expert in inheritance law. The problem is that “they try to justify the use of the house by the unwritten will of their parentswhich is not a title that legitimizes its use,” he emphasizes.

There are also cases in which the heirs find themselves without rights in the parents’ house even though they own another apartment. Antonio Martínez says that although the profile of the occupants is that of people without economic means, there are times when they are simply “hard-faced” people. The lawyer recalls a case in which they had to go to court to evict a man who was living on loan in the family home while earning income from his rented apartment.

According to the expert, most of these questions concern family entanglements and conflicts. A lack of understanding which causes the burofax attempt to fail, inviting the occupant to voluntarily leave the apartment. “They don’t have another house to go to, so they usually don’t have access to it,” Martínez summarizes. Bad relations between brothers also boost the distribution of inheritance. “It is common for the courts to rule on the illegitimate occupation of housing before the division of property,” underlines the expert. “These are cases that drag on before the courts,” recognizes Martínez.

To prevent the squatter heirs from moving into the family apartment, explains the lawyer, it is necessary to initiate an eviction procedure “due to insecurity”. The same that every owner must invoke to evict people who use their accommodation without rights and thus recover possession. The main characteristic of these procedures is that the occupation of housing occurs without the score having been signed, situation that in legal jargon we call “lying inheritance”. This name refers to all the property and rights that the deceased transmits from their death until the time when the heirs accept or renounce them.

In any case, these are the main questions that must be taken into account by heirs who find themselves immersed in this problem and wish to recover their parents’ house to sell or rent it.

When should you take legal action?

If an attempt has already been made to reach an agreement satisfactory to all parties concerned and this agreement has not been reached, there is no need to waste time pursuing the occupier of the property. As lawyer Antonio Martínez explains, it is advisable to act quickly because these are complex and lengthy processes. As the situation resolves, expenses accumulate that reduce the balance of joint accounts or damage may be caused to the home.

“Moreover, as long as the heir is a squatter, it will be difficult to rent the accommodation,” underlines the lawyer. We have seen cases where the occupant has gone so far as to boycott the rental, preventing the tenant from entering, once the contract has been signed,” explains Martínez. The solution, he recommends, is to seek additional compensation for the damage caused.

What procedure should I use?

The legal tool used is the precarious expulsion procedure, included in article 250 of the Code of Civil Procedure. “This is very similar to the procedures used, for example, when the tenant does not pay the rent,” explains Antonio Martínez. This is a civil procedure in which the judge is asked to order the heir to leave the occupied accommodation.

The complaint is resolved during a formal hearing, faster than an ordinary trial. As the name suggests, the matter is heard before the judge in a single session called a “hearing”. Once the complaint reaches the court and is processed, a hearing date is set and after that the judge issues a decision. If the defendant does not appeal within the next 20 business days, he or she must abandon the house or land, otherwise there will be “eviction,” i.e. forced eviction.

What reasons can the squatter heir rely on to stay in the home?

The squatter heir has no legal argument in his favor to remain in the accommodation before signing the partition book, which is the document in which the deceased’s property is equitably distributed. However, underlines Antonio Martínez, “just as happens in evictions for non-payment of rent, if the squatter tenant is responsible for minors and has no other accommodation, the eviction could be delayed, because judges always monitor the interests of the minor.”

Since March 2019, courts aware of this situation must notify the social services on the existence of an eviction process. At the same time, they must also inform the defendant tenant of the social services they can turn to for help.

In the event that social services determine that the tenant is in a vulnerable situation, the eviction procedure is suspended for a maximum of one month, explains the lawyer. Once the month is up, the process continues.

How long does the legal procedure take? Do the police intervene?

These procedures can last up to a few years and end with the expulsion of the squatter heir on the date set by the judge. If he does not leave the home voluntarily, the police intervene during eviction or eviction.

What happens in the meantime with the apartment expenses?

The one who resides and uses the house is the one who must pay the costs of providing the accommodation, such as gas, electricity, water, etc. Often, explains lawyer Antonio Martínez, “the charges are placed on the current account of the deceased parents, holders of these contracts”. This makes the problem worse since this money is also part of the inheritance. The bank account can shake if this situation continues for years and other charges such as property tax (IBI) or the community of owners are covered. “Certain expenses that other heirs can later claim from the squatter,” explains Martínez. In this case, it will be necessary to calculate the quantity of supplies used plus the corresponding part of fixed costs such as IBI and community.

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