The sale of shares in inherited properties continues to be a frequent source of family conflicts, especially when the agreements are old and made outside the formal circuit. A recent ruling by the Audiencia Provincial of Málaga has once again placed this issue at the center of legal discussion, by clarifying the extent to which a private contract can produce effects and prevent, years later, the division of an inherited house.
This decision involves two brothers and the house they both inherited after their mother’s death. The conflict arose when the sister tried to legally force the division of the property, despite there being a previous agreement in which she had sold her share, according to the Spanish digital newspaper Noticias Trabajo.
At issue was a private contract signed in 2002, through which the brother claimed to have bought the 25% of the house that belonged to him from his sister. The agreement provided for the payment of this quota, which, according to the court, was done over several years. Despite this, many years later, the woman took legal action to force the division and sale of the property, arguing that she continued to be co-owner and that the contract did not produce legal effects.
First instance ruled in favor of the sister
The case began to be heard by the Court of First Instance No. 1 of Antequera. The court considered that the private contract was not sufficient to produce real effects on the property and declared the dissolution of the existing co-ownership. As a consequence, he ordered the sale of the then inherited house at public auction, attributing 25% of the value to his sister and 75% to his brother, thus reopening a conflict that seemed resolved since 2002.
Provincial Hearing reviews the decision
The decision would be changed in the second instance. In the ruling of March 14 of this year, the Audiencia Provincial de Málaga concluded that the sale of the sister’s share had been valid and effective.
The judges considered it proven that, at the date of the contract, the woman was already the full owner of the 25% inherited from her mother and that she effectively received the agreed price, through successive payments made over the years, according to the same source.
Void clause does not invalidate the contract
The contract also included a reference to rights over the father’s future inheritance, a clause that was declared null as it affected future inheritance, under the terms of article 1271 of the Spanish Civil Code.
However, applying the doctrine of partial nullity and the principle of conservation of the legal transaction, the court understood that this nullity did not contaminate the valid part of the contract, relating to the sale of the share already acquired in the mother’s house.
Lack of public deed was not decisive
Another central point of the decision was the absence of public deeds. The Audiencia rejected that this lack was sufficient to invalidate a transmission that was already perfected and paid in full. According to the jurisprudence of the Spanish Supreme Court, when there is an agreement of wills, payment of the price and delivery of the asset or exercise of the owner’s powers, the sale takes effect between the parties, even without a deed.
The court also valued the fact that the brother had acted, for years, as the sole owner of the property, occupying it, paying the expenses and ensuring its maintenance, without any opposition from his sister. This conduct, according to the same source, was considered consistent with the existence of a previous sale and incompatible with the thesis that the woman continued to be co-owner.
Division of the house was considered unfounded
The Hearing concluded that the sister no longer had any right to the property and that her claim for division and sale had no legal basis.
According to the ruling, accepting this position would imply unfair enrichment, since the woman had already received the amount corresponding to her share and now intended to benefit again from the sale of the house.
Obligation to grant deed
As a consequence, the court declared valid the sale of the 25% of the house inherited from the mother and ordered the woman to grant the respective public deed within ten days after the sentence became final. The decision also allowed the possibility of a cassation appeal to the Supreme Court, according to the .
What if it happened in Portugal?
In Portugal, similar situations are mainly regulated by the Civil Code (CC). The sale of real estate requires a public deed or authenticated private document to take effect, in accordance with article 875 of the CC. However, between the parties, a promissory contract (art. 410) or a private contract can generate valid obligations, as long as there is an agreement, a lawful object and a legitimate cause and the legal requirements are met.
Portuguese jurisprudence also admits the partial nullity of contracts, provided for in article 292 of the Civil Code, allowing the valid part of the transaction to remain if it can subsist autonomously without the null clause.
Regarding the division of common property, article 1412 establishes that any co-owner may demand the division, unless he no longer has that capacity. If it is proven that the share was validly transferred and paid, the former holder no longer has standing to request the division. Finally, the principle of unjust enrichment, enshrined in article 473 of the Civil Code, prevents someone from receiving the same right twice, and is frequently invoked by Portuguese courts in disputes involving informal sales of properties between family members.
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