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Housing acquired in undivided favor

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Housing acquired in undivided favor

Vivienda adquirida en pro indiviso
Housing acquired in undivided favor

It is very common for marriages under a separation of property regime (in which each spouse belongs to the assets they had at the time initial marriage and, those who later acquire by any title, as well as the administration, enjoyment and free disposition of such assets) or simple domestic couples, siblings, etc., acquire a home in common or pro indiviso.

Purchase of an undivided asset

The purchase of an undivided asset assumes that the purchasers agree to bear any expenses, charges, taxes and other obligations that arise in connection with jointly purchased housing.

However, on numerous occasions we find that one of the owners has faced most of the aforementioned expenses, the rest of the buyers refusing to reimburse the part paid in excess, so the party in compliance has no other option than to claim the debit balance through the appropriate legal action.

The legal definition of “Community Property”, or more commonly known as “Condominium”, can be found in Article 392 of the Civil Code:

“There is a community when the ownership of a thing or a right belongs pro indiviso to several people”

The condominium is the legal status of the property in which it is distributed among various persons, whether natural or legal, so there will be condominium over a property property when it is owned by several people.

Specifically, sect. 10th of the AP Madrid, in its judgment no. 295/2016, rec. 97/2016, expressly states that when there is no statement to the contrary regarding the origin and contribution of the money for the sale of a home, it must be considered that it is acquired in halves by voluntary decision of the purchasers.

Article 393 «the participation of the participants, both in the benefits and in the charges, will be proportional to their respective quotas«. In this sense, Article 395 CC determines that:

“Every co-owner shall have the right to oblige the participants to contribute to the conservation expenses of the thing or common law. Only those who renounce the part that belongs to them in the domain may be exempted from this obligation.”

In relation to the duty of community members or condominium owners to pay half of the common expenses, jurisprudence has been pronounced on numerous occasions.

For example, the judgment of April 13, 2011 of our 1st Chamber of the Supreme Court which dismissed the appeal appeal confirming the contested judgment that ordered the appellant to pay the plaintiff the proportional part that corresponded to the former for the release of the mortgage arranged for the acquisition of the common property, since the plaintiff paid in full the amount necessary to avoid the auction of said farm.

In short, all those who have participated in the purchase of a common good must bear proportionally the costs of its conservation, unless there is an express waiver of the part of the domain in question. Well, in principle, the obligation to pay is a necessary and inherent consequence of his condition as co-owner, by half, of the property.

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