EL REAL DECRETO-LEY 27/2012, DE 15 DE NOVIEMBRE: ¿UN DERECHO DE HABITACIÓN LEGAL DE LA FAMILIA EJECUTADA O UN COMODATO FORZOSO?

Abstract

Recent days have seen the publication of Royal Decree-Law 27/2012 of 15 November on urgent measures for stronger protection for mortgage loan holders. This piece of legislation establishes a two-year eviction suspension period, effective once the lender has been awarded the property in foreclosure proceedings. This constitutes a legal limit on ownership that is established in a private interest, although the parent law responds to obvious reasons of public interest and public order. This author finds only two feasible legal formulae for describing the legal situation of the borrower and his or her family as they occupy their erstwhile family home. Either the family has a real legal relationship of habitation with the property, or else the lender has the obligation to enter into a forced commodatum agreement with the family (as an obligatory act). In either case the property is occupied on a gratuitous basis. However, in the first the right is enforceable erga omnes, it has a connected web of content establishing personal obligations and rights for the parties (owner and inhabiting family) by analogy with usufructs, and it may be registered, a possibility that facilitates disclosure, secure trade and compliance with the rule that the parties to a mortgage must be specifically named. In the second case, the right of the especially vulnerable family is a personal right, but it is one that lasts for the entire legal period, even if the property is sold (in which case the buyer is subrogated to the lender's position), and it is not eligible for registration.