Dominical and possession disputes caused by the family home right of use assignment

Abstract

The assignment of the use of the family home raises many problems from a dominical and possessory point of view both between the spouses and with third parties, considering the different legal titles by virtue of which the spouses had been occupying said home before the matrimonial crisis. The legal regime applicable differs depending on whether the house is owned or co-owned by the spouses or by a third party. The legal nature of the right of use, its legal significance from the perspective of property rights and its enforceability against third parties, as well as the interrelation between the regime applicable to the home during the marriage and after the matrimonial crisis, are discussed in order to clarify the ownership and possessory rights of both spouses and third parties involved in such situations. Although the approach to this problem has changed after the STS 18 January 2010, the reasoning adopted in said ruling raises multiple questions and leads to confusion in many aspects, a deficit that can also be seen in the decisions of the DGRN on this matter. Therefore, it is necessary to develop a unitary theory on the nature of the right of use and the legal implications that such right entails for the spouse or spouses as well as for the third party owners of the house, in order to clarify the solution applicable in each of the hypotheses that arise in Court practice, not only de lege lata but also de lege ferenda, if a legislative reform such as the one contained in the Civil Code Proposal is considered as necessary.