Can a sibling be forced to sell the inherited flat?

Question

José Manuel Alburquerque · Accepted Answer

Ultimately, yes. If there is no agreement, any of the siblings can ask the court to divide the flat. As a flat cannot be split up, the court awards it to the sibling who wants to keep it, who pays the others their share. If none of them wants it, it is sold and the money is shared out. The sibling who lives in it cannot prevent this. How to apply If the estate has not yet been divided, the court is asked to partition the estate. If it has already been divided and the flat belongs to all of them, the court is asked to divide the flat. An expert values it. If one of the siblings wants to keep it, it is awarded to them and they pay each of the others their share of that value. If several want it, it goes to the one with the largest share and, if the shares are equal, lots are drawn. A sibling who owns at least four fifths of the flat can insist on keeping it by paying the others. If nobody wants it, it is sold, normally at auction, where the price obtained is usually lower than in an ordinary sale. The deceased may have prohibited division in their will, or the siblings may all have agreed not to divide it. The maximum is ten years. If the flat is the principal residence of an heir who is the surviving spouse, the partner or a child of the deceased, it can be fifteen. Even so, the court can authorise the division if just cause arises. If one of the owners is a minor or has a disability and the division is prejudicial to them, the court can postpone it for up to five years. This applies where the estate is governed by Catalan law and the will does not provide otherwise. Under the Spanish Civil Code (“Código Civil”), when the estate is divided it is enough for one sibling to ask for a sale by auction open to third parties for it to go ahead. If the estate has already been divided, the law of the place where the flat is located applies. If one of the siblings lives in the flat They can use it, but cannot prevent the others from using it or from applying for its division. The others can claim compensation from them for having sole use of it. The courts recognise it from the moment the others clearly object to that use, not before. It is advisable to object in writing, for example by “burofax”, a certified letter with proof of content, so that this can be proved. The flat's expenses, such as the “IBI” (the local property tax), the owners' association fees or necessary repairs, are shared among all of them according to each one's share. Whoever pays them up front can claim the others' share from them, with interest from the time they claim it in a way that leaves a record. Before going to court Court proceedings can take more than a year and mean paying lawyers, court agents (“procuradores”) and experts. Before bringing a claim, the law generally requires an attempt to reach an agreement. That is why it usually pays to negotiate, for example for one sibling to buy the others' shares or for them to sell together at a good price. If, after the inheritance, one of them keeps it all and pays the others, they do not pay transfer tax (“impuesto de transmisiones”), which is usually 10 %. What is payable is stamp duty (“actos jurídicos documentados”), which in Catalonia is 1,5 % of what is acquired.