The attribution of the use of the house belonging to a third party: precarious or commodatum

Abstract

The attribution of the use of the home represents a measure that can be adopted in a regulatory agreement or in a contentious process of nullity, separation or divorce. There are various criteria that article 96 of the Civil Code establishes to apply such a measure, the regulation of which has been recently modified by Law 8/2021, of June 2. On the other hand, a frequent assumption that arises before the courts and causes conflict is the use of the home given by the parents of one of the members of a couple (marital or not) when it breaks down. The transfer of the use of the property is made free of charge, without establishing a period of duration or specific use, but with the purpose that it serves as a home for the child and their spouse and children. After the marriage or couple crisis, the sentence may award the use of the family home to the partner of the home owner's child, considering whether this situation is precarious or commodatum. Being the majority position of the doctrine and jurisprudence in favor of the first described possession situation, being exercised by its owner an action and eviction for precarious or a claim action to recover the home. This study is dedicated to the questions described about the use of the home.