One of the most common situations is that of an heir who lived with the deceased father or mother, being the last surviving spouse (father or mother deceased), and therefore, the heir ends up occupying the property without a formal title. This means that the heir is neither a tenant (since they do not pay rent and lived with the deceased as their child, with inheritance rights) nor a usufructuary (as no such right was granted in the will), nor a co-owner or titleholder of the property while the inheritance remains undivided, leaving them in a precarious situation.
The other heirs find themselves in a difficult position. On one hand, they want their inheritance and thus need the property to be vacated for sale, or for the occupant to purchase it, but they also need to evict a sibling who is living there.
Being an heir is no longer a title that allows the continued use of the property. Therefore, if an agreement is not reached with the other heirs, an eviction action for precarious occupancy may be filed. Ultimately, the occupant will have to vacate the property, regardless of their future co-ownership, once the partition is made.
The ruling by the Supreme Court of February 28, 2012, states:
"When a co-heir is exclusively occupying a property belonging to an undivided inheritance, WITHOUT PAYING RENT and WITHOUT A LEASE TITLE, the other co-heirs, while the inheritance has not yet been divided, can file an eviction action for precarious occupancy against the occupying co-heir."
In this ruling, after carefully analyzing the various solutions provided by the Provincial Courts, the Supreme Court confirms the viability of eviction for precarious occupancy initiated by the majority co-heirs against the minority co-heir while the inheritance remains undivided.
The Supreme Court has declared that until the inheritance partition is completed by any of the legally accepted methods, heirs do not acquire exclusive ownership of any hereditary asset.
In the case examined, the defendant is exclusively using the property subject to eviction, to the exclusion of the other co-heirs. The property is part of an undivided inheritance, and the lawsuit aims to recover the property for the hereditary community, meeting the requirements set by this Court for declaring the eviction."
This conflict between co-heirs, where only one of them exclusively possesses a hereditary asset BEFORE THE INHERITANCE PARTITION, has been the subject of numerous lawsuits, leading to abundant case law from the Provincial Courts and the Supreme Court to unify doctrine.
– Supreme Court Ruling of February 14, 2014: "While the state of undivided inheritance precedes the partition, and it being a complementary operation essential for recognizing ownership over specific assets of the inheritance, exclusive use of a hereditary asset in favor of a particular co-heir cannot be admitted. In other words, case law accepts the viability of precarious occupancy actions between co-heirs, against the co-heir, and in favor of the hereditary community."
Leocricia González Abogados.