What is "precarious"?
Adverse possession is a factual situation involving the use of another person’s property without legal title to justify such possession. This may be because the possessor never had title, because the title has been lost, or because the possessor has a lesser right to the property.
Undivided estate
When a person dies, those who are named as heirs—whether by will or by law—must complete the procedures for accepting and receiving the inheritance.
These procedures can be carried out by mutual agreement—which is the most advisable course of action—or through the courts if no consensus is reached.
Acceptance of an inheritance may be requested through a notary public pursuant to Article 1005 of the Civil Code. This provision allows any heir to request that the other heirs accept or reject the inheritance. If they do not respond within 30 calendar days, it is understood that they accept it outright.
Following acceptance—or even simultaneously, if an agreement is reached—the assets are distributed. If no consensus is reached, the matter must be resolved through the courts to determine the division and allocation of the assets.
Deadlock Due to Lack of Agreement
A lack of agreement among heirs can lead to deadlock. This is especially true if one of them prevents the shared use of an asset or refuses to sell it. This situation creates constant tension among the members of the estate, which slows down the probate process.
Furthermore, such blockages are often part of a pressure tactic or an unfounded refusal, which forces the other parties to take the matter to court. The involvement of a specialized attorney is crucial to resolving the conflict and expediting the proceedings.
Heir who has exclusive use of the home
It is common for one of the heirs to have exclusive use of a property included in the estate without allowing the others access. This exclusive possession, without authorization or a formal division of the estate, leads to conflicts. At times, it even prevents the sale of the property or its equitable distribution.
Sometimes, that heir has a larger share of the estate. However, the Supreme Court has made it clear that even in that case, the heir cannot claim exclusive use of a jointly owned asset. Exclusive possession infringes on the rights of the other co-heirs, who have the same legal title as long as the estate has not been divided.
Unlawful possession to the detriment of others
During the period of undivided co-ownership, all co-heirs have a title to possession. However, this does not justify exclusive possession. Excluding the others renders the occupant’s possession precarious, even if he or she is an heir. This doctrine is fully established in the most recent case law.
The courts have emphasized that the fact that a co-heir previously lived in the property or has a larger share of the inheritance does not give that person the right to use it as if it were exclusively theirs. Possession must always respect the common interest of the community of heirs.
Can the other heirs evict him?
Yes. The Supreme Court has upheld this in several landmark rulings. One of the milestones was Supreme Court Ruling No. 547/2010, dated September 16. That ruling recognizes that any co-heir may bring an eviction action against a tenant for non-compliance with lease terms on behalf of the community of heirs.
This doctrine establishes that, until the assets are distributed, everyone has the right to use the estate. However, they do not have the right to do so exclusively. Therefore, if one person prevents others from accessing the assets, they may be sued for unlawful possession. The purpose of this action is to restore balance among the co-heirs and protect the shared nature of the assets.
It doesn't matter how many installments there are
The Supreme Court has been clear: the fact that one co-heir holds a majority of shares does not prevent another co-heir from suing that person. This was stated in Ruling 198/2023, dated February 9. A majority shareholding does not, in and of itself, justify exclusive possession that harms the others.
Even if exclusive use is supported by other heirs, a court may be petitioned if the common interest is harmed. Such harm may consist of blocking the sale or distribution of the estate. Case law has clearly protected heirs harmed by this type of conduct.
Recent Rulings
Supreme Court Ruling No. 178/2021, dated March 29, reiterated that an eviction action based on precarious possession among co-heirs requires that the property remain undivided. It also requires that the occupant not have a valid title to exclusive possession. If there is any legal title that legitimizes such possession, the eviction will not proceed.
Judgment No. 1576/2024, dated November 20, resolved another typical case. One of the siblings lived in the inherited home and claimed a larger share based on the mother’s will. Nevertheless, the Supreme Court ruled in favor of the sibling who sought eviction. Exclusive occupancy without a valid award of ownership was deemed precarious.
The rule remains firm: one may not take exclusive possession of a common asset until it has been divided. Possession must respect the principle of equality among co-heirs and everyone’s right to share in the undivided assets.
Can they request the division of the common property?
Once the inheritance has been accepted and the assets distributed, if there is no agreement on the sale, any co-heir may request the judicial division of the jointly owned property. This is governed by Article 400 of the Civil Code.
That article recognizes that no co-owner is obligated to remain in the community. A co-owner may request the division of the property at any time, unless otherwise agreed or if the property is indivisible. This action makes it possible to put an end to prolonged deadlocks that prevent the liquidation of the common property.
Updated Procedure
The Civil Procedure Act, following the amendment of March 20, 2024, provides that these cases be heard in oral proceedings, pursuant to Article 250. This procedure is more expeditious than the ordinary one and allows for a judicial decision to be reached within a more reasonable timeframe.
This procedure allows for a more expeditious resolution of disputes over the division of common property, which is particularly useful in inheritance matters. The simplicity of the oral proceedings facilitates a less costly and faster resolution, benefiting the co-heirs who wish to settle the estate without further delay.
Professional Opinion from Carlos Baño Abogados
From Carlos Baño Law Firm We believe it is essential that heirs fully understand their rights in these situations. One of the most common mistakes is assuming that holding a larger share grants complete decision-making power. That is not the case.
As long as there is no formal allocation, no one may claim exclusive use of a jointly owned asset. If this happens, the other heirs must take action—either by filing an eviction suit for unlawful occupation or by requesting a judicial division of the estate.
We recommend seeking legal advice from the very beginning. This is especially true when an heir refuses to cooperate or imposes their will on the others. The best approach is to prevent conflicts by establishing a clear distribution of assets and avoiding deadlocks in the management of the family estate.
Our firm has handled numerous cases of this type, successfully on behalf of our clients. Defending the common interests of the community of heirs is essential, and the law supports that right.
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