The Supreme Court upheld the lack of standing of a sister to evict another sister from the flat in which she lived, owned by her parents. The plaintiff sister brought this action after the death of her father, as she became an equal heir, along with the other siblings, of the part of the flat that corresponded to her father in the community of property. It is an action of "eviction for precariousness", based on the fact that the occupant of the property has no contract or other title to it and does not pay anything to live in it.
The courts had dismissed the claim on the grounds that the mother had not brought the action, despite the fact that she was the owner of her half of the community of property and also had the usufruct of the other half while she was alive (the half inherited by the daughters) by virtue of her husband's testamentary disposition. The plaintiff sister, however, is only a member of the community of heirs established after the death of the father. This community only holds the bare ownership (simplified, ownership of something held in usufruct by another) of half of the house, which is held by the mother as usufructuary. Therefore, it is considered that the plaintiff does not have standing to bring a claim before the courts, as she lacks possessory power.
The plaintiff appealed to the Supreme Court (SC), considering that it was not taken into account that the inheritance is in the period of indivision that precedes the liquidation of community property and hereditary partition. Now the High Court has dismissed the appeal as the owner lacks standing to file an eviction for precariousness in a case such as this, in which the inherited community is only the owner of the bare property and acts as a member of the community.
It also clarifies that although the father's inheritance remained in the period of undivided property prior to the liquidation of the community property and the partition of the estate, it is not disputed that the house belongs to the mother in her half, for her share of the community property, and the other half as usufructuary.
The mother has the right to possess all the assets of the estate, before and after the partition, irrespective of the specific allocation of those assets, which will not alter her right as owner or usufructuary. She could bring the action, but the plaintiff does not have the power of possession. Both one sister and the other sister are heirs of a bare ownership, which is why their standing to evict is rejected.
