The right to use the family home as a registerable right: missed opportunity in law 8/2021

Abstract

The latest reform of art. 96 Civil Code, operated by virtue of Law 8/2021, includes in its third paragraph the express mandate to register on the folio of the property that is a family home "the restriction on the operative power over the family home", when its use has been attributed, as a consequence of the separation or divorce, to the other non-owner spouse. Finally, the legislator expressly includes that the right to use the judgment of separation or divorce be registered, because it implies a restriction on the power to dispose; that is to say, a limitation on the dispositive power of the other titular spouse. This is the negative content of the right to use the family home. However, from the literal diction of that article, it does not seem to follow that the positive content of this right should also be registered: the power of use, occupation. This article criticizes this legal reform, as useless and erroneous, and argues in favor of the need to register the positive content -power of use- of the right to use the family home. We consider that it must be registered as a true real right to achieve its full opposability and guarantee its function of housing the people most in need of protection.