Compensation for the exclusive use of the common thing,es

division de la cosa comun


Can co-owners claim compensation if the thing in common has been used exclusively by one?

El Código Civil consagra dicho derecho en el artículo 394:

Each participant may use common things whenever you have them according to their destination and so as not to prejudice the interest of the community, or prevent the co-participants use by law.

In addition to the limitations set out in that Article, the 397 C.C., prohíbe hacer alteraciones aunque fuesen ventajosas para el resto.

The typical case occurs in herencias y crisis matrimoniales. A partir de una ruptura, uno de los copropietarios se queda con el uso exclusivo del piso. Al cabo de un tiempo, the other wants to obtain compensation for failing to use a portion of the common thing that was right.

Do you have chances of success of such claim?

The pronouncements of the courts are numerous on these cases and establish the following jurisprudential line.

1.- The other joint holders, deprived of the use of a thing to which they were entitled, They can claim compensation por no haber utilizado la cosa común a la que tenían derecho. Dicha indemnización se justifica por los daños y perjuicios sufridos o por la acción por enriquecimiento injusto.

In this sense, the Supreme Court has established that the use of the property by one of the participants in an inherited community, excluding the enjoyment or use of others, es ilegítimo (SSTS 18 February 1987, and 7 May 2007).

2.- In order to request such compensation, es imprescindible haber requerido fehacientemente al que está disfrutando de la cosa para que permite el uso por el otro copropietario. If there is no such requirement, it is considered that the exclusive use is "tolerated" or "allowed" by the other co-owner, to be deprived of their right to compensation.

En esta línea se pronuncian las siguientes sentencias: SAP Toledo 25 January 2013: "Hitherto it has no requirement in this regard but merely voluntary departure of domicile, that alone does not imply the contrary is performing an abusive or exclusive use ". concludes that "It is applied consistently from compensation in half the income that would have been obtained by the use of the property, pero no desde la ruptura de la relación de pareja en febrero de 2009 as does the sentence, because as we saw at first we find a consensual situation of the applicant, but from the second request to sell or rent housing produced the 22 June 2010, understanding that it is thereafter, It ie the monthly installment from July 2010, when definitively by the applicant to the defendant it expresses a requirement either sharing under 394, While the need for that termination to sell or lease it to a third party, While the requirement of an income per share of good in the community corresponding acquirer ".

This position is also based on the judgment of the Supreme Court 19 March 1996:

"To date it is received by the defendants certified notice the agreement of the majority for them to put the property available to the community (….) There is an exclusive possession of the first that has been allowed and tolerated by the applicants (….).

More recently, en la misma dirección, pronounced the SAP Pontevedra 29 January 2016, SAP Cádiz 13 October 2015 ("The actor is only entitled to compensation for the exclusive use of the housing that make the defendants from the date of filing of the application, 6/05/2011; that damage is determined by the amount that would have a monthly income of such housing if that was rented "), SAP Málaga 31 January 2014, SAP Granada the 7 May 2010 ("The subsequent conduct of the plaintiff does not claim any act of his economic right to the defendant, it being understood (Judgment of the Supreme Court 19 March 1.996) there was a tacit consent to assign the use to the defendant or at least tolerance for use when no claim to that effect has been made to the defendant, at least until the time of filing the demand, so that, habiéndose pedido exclusivamente indemnización hasta esta fecha, no procede acordar indemnización alguna”).

Besides having irrefutably required to co-owner, it will be necessary for the successful completion of the case, is presented expert evidence justifying the price of compensation requested.

So if it is in one of these situations, y algún día quiere reclamar una indemnización por no haber utilizado una propiedad en común, it is essential to send a request irrefutably (for example, a burofax, with acknowledgment and certification content), solicitando el ejercicio de su derecho al uso como copropietario. In the future, You need such proof to apply to the courts.

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