LA ATRIBUCIÓN JUDICIAL DEL USO INSCRITA FRENTE A ROCEDIMIENTOS DE EJECUCIÓN SOBRE LA VIVIENDA HABITUAL.

Abstract

A family's regular home comes under especially strong legislative protection. Under normal marital conditions, article 1320 of the Civil Code requires either the consent of both spouses or court authorization before rights in the home can be disposed of. Alternatively, article 96.4 of the Civil Code sets the same requirements for crisis situations when a marriage is dissolved through annulment or divorce. At both times, when the marriage is in force and after dissolution, the home, being real property, can as such be the object of action taken by creditors as a consequence of foreclosure. And if the property is registered as belonging to one of the spouses only, the court declaring the marriage dissolved may well assign use of the property to the spouse who is not the registered owner and to any children. We accept the possibility that the court's assignment of use may be registered in the Property Registry, and we wonder what would happen if, after such an entry is made, a caveat of attachment of the home is submitted for registration as well. The Supreme Court and the Directorate-General of Registries and Notarial Affairs have established their view, which is that the court's assignment of use is not a real right, and that the sole purpose of the court's assignment of use is to prevent the registered owner from disposing of the home at will without the consent of a non-owner ex-spouse who is using the home. This is a switch from the authorities' traditional stance, under which assignments of use were regarded as real rights, and it leads to this immediate consequence: Registration of such an assignment is not sufficient title to stop acquisition of ownership after foreclosure. The situation is merely one of possession the same situation of possession that existed before the marriage was dissolved, a situation that entitles the user to remain on the property as long as the title underlying the user's possession exists, but a situation that nevertheless collapses once the owner spouse's ownership is terminated.