One of the most frequent problems that arise when a property belongs jointly to several owners is the exclusive use by one of them., not consented by others. In these cases, It is common to ask the lawyers two questions: Is it possible to claim compensation for damages? And is eviction action possible??. It must be answered affirmatively, although with nuances.
The article 394 of the Civil Code says “Each participant will be able to use the common things, provided that they are disposed of in accordance with their purpose and in a manner that does not harm the interest of the community., nor prevent the co-participants from using them according to their right.".
For this reason, The other co-owners may request that the exclusive use of the property cease and that they be allowed to use it.; y, besides, by article application 1902 of the Civil Code, as well as, subsidiarily, for the action of unjust enrichment, may request financial compensation. Nevertheless, It is essential that express opposition to exclusive use by other community members can be proven., Otherwise, it would be understood that there is tacit consent.. Regarding the amount of that compensation or indemnity, What is appropriate is to go to an expert report that allows proving the monthly income for similar properties in the real estate market., which would have to be multiplied by the time that the home has been improperly occupied, yes indeed, counting from the date on which the notification claiming compensation was received. (AP Ourense sentences, Section 1, 386/2016, November 0; AP Pontevedra sentence, Section 1, 51/2016, of 29 January, AP Madrid Section 14, 158/2015, of 8 June, Sentence No. 194 of the First Civil Chamber of the Supreme Court of 19 March 1996, ES:TS:1996:7970).
Respect for the possibility of evicting the community member who exclusively uses the property, jurisprudence allows exercising the eviction action due to precariousness. Now well, for this it is necessary, under the article 398 of the Civil Code, that is exercised by the greatest number of co-owners and quotas. Precisely, for it, The problem arises when a property is half owned by two co-owners., Because in this case there are rulings from Provincial Courts that deny that the eviction action can be brought., The co-owner who does not have the use of the property must take another legal action, such as a claim for damages or shared use of the property..
