It is not uncommon for a property to be inherited by several people, and one of them, without the agreement of the rest, and before the division of the inheritance, decides to move into the property, or to remain, if he/she was living there before.
This exclusive occupation by one of the heirs makes it impossible for the rest of them to sell or rent the property, causing a clear damage for loss of income.
What can the rest of the heirs do about it?
If, after sending a reliable notification to the heir who is occupying the property urging him to vacate, he/she continues to remain there, the rest of the heirs may file a claim for eviction against the occupant (“desahucio por precario”).
Compensation may even be considered if the heir’s occupation has caused damage, since, for example, the property could have been rented and was not rented as a result of the unauthorised occupation, which could be evidenced by the reliable communication sent.
Can the surviving widower sue for eviction?
If he/she has been declared universal and life usufructuary by will, he can, since according to case law, he/she has standing to do so, having been declared legatee by the deceased (STS of 20 January 2014, rec.: 495/2011).
What if it is the widowed spouse who is occupying the inherited property?
The widowed spouse – in the absence of a will from the deceased – is entitled to the usufruct of one third of the properties and assets of the deceased, if there are descendants; one half of the property, if there are no descendants but there are ascendants; or two thirds of the property, if there are neither ascendants nor descendants.
More often than not, the spouse leaves in its will to the partner the universal and lifelong usufruct of its properties, so that he/she will participate in the inheritance as another heir, as a legatee, and, thus, could also be evicted if the goods and assets have not yet been distributed among all the heirs.
To avoid litigation, the Spanish Civil Code provides that the heirs may compensate the usufructuary (surviving widower) with an annuity or cash capital, if there is agreement among all of them. If the widower concurs with the deceased’ descendants, the latter are the ones who may choose whether to compensate the widowed spouse with an annuity or with other inherited assets.
