EL DERECHO DE USO EX ARTÍCULO 96 DEL CÓDIGO CIVIL ANTE LA HIPOTECA Y EL EMBARGO DE LA VIVIENDA FAMILIAR

Abstract

 The de facto situation on which this paper is based concerns the forced disposal of a home that is used not by its owner, but by its owner’s ex-spouse. The issue is whether the right of use created at the break-up of the marriage ought to remain in force or whether the right is terminated when the property is awarded in legal proceedings for collection. In analyzing this situation, whether the defaulted loan at issue in the foreclosure proceedings was secured with a mortgage or not makes a difference in the explanation of how the rules of priority and conclusive title work in each hypothesis. What is essential for settling the problem of the enforceability of use in both cases, however, is the date when the right of use was created in relationship with the dates when the mortgage or attachment was created and registered. Throughout the paper emphasis is laid on the importance of not mistaking the solution that is felt to be fairest or most desirable in a particular case with the necessary application of legal rules and principles. Legislators may eventually decide to conduct a reform to strengthen the efficacy of the right of use against attacks by third parties for a period similar to the guaranteed period envisioned for home leases in sections 13 and 14 of the Spanish Urban Lease Act.