One of the requests for information and advice in mediation is the community of inheritance.

A community of property occurs when an asset of any kind is owned by several persons and all of them are co-owners in their respective shares.

Community of heirs is the situation resulting from the simultaneous concurrence of a plurality of heirs to the succession, and which is extinguished with the partition of the inheritance.

This is the typical and topical case of an inheritance: when several persons inherit a property, they create a community of property and, with this, certain rights and duties.

The community of heirs arises when a plurality of heirs are simultaneously called to the same inheritance and accept it.

Simultaneity is essential, since the effective coincidence in time of the different titles acquired with the acceptance is indispensable; otherwise, there would be successive heirs, but no co-heirs. Likewise, it is necessary that the called parties are called to the same undivided inheritance, i.e. that the testator has not himself divided the inheritance among the persons to whom he is entitled.

The hereditary vocation must be universal, which excludes successors in a particular capacity, such as the legatee, and those called to a value, such as the legitimation, who is not also an heir and the legatee of an aliquot part.

In addition, the community property may consist of a set of assets or rights. The definition of community of property is found in Article 392 of the Civil Code: “There is community of property when the ownership of something or of a right belongs proindiviso to several persons”.

There are different types of community of property depending on who forms them, what purpose they serve… For example, the model of community of property between siblings or community of property between relatives is very common, precisely because, with the inheritance, certain assets may become the property of the deceased’s descendants, so that each of them will have a share of the property.

EVOILA! We already have the conflict…

The fact is that sharing a property with other people in a regime of in division makes it uncomfortable to enjoy it, makes it difficult to govern, and often makes it impossible to sell it with the agreement of all.

In these cases, as solutions we would opt for:

a) The new owners can maintain the community and operate it, for example, in the form of renting or regulating its use and enjoyment. They can also make decisions regarding the very existence of the community: perhaps one of the parties wants to sell, and in this case they can cede their share to the others in exchange for compensation.

b) Another possibility is to transfer the entire property to one of the parties (in this case, the community disappears, as there will only be one owner) or to sell it to a third party because the co-ownership regime is terminated.

The law has always seen community of property as a potential source of problems, and has therefore introduced facilities for joint owners to “separate” when they wish to do so.

In that sense, any co-owner can demand the division of a property, even if he/she has a very small share and without the need to explain the reasons why he/she wants the division.

What it cannot demand, however, is the precise manner in which this division is to be carried out. This form of division must be determined by mutual agreement of all co-owners (unanimously).

EVOILA! We now have MEDIATION IN ACTION…

Unanimity is achieved with a culture of DIALOGUE and conflict resolution, empathy and individual emotional effort from each of the parties.

We work in the family context with tools and resources to facilitate the positive management of conflicts and the accompaniment of families in the different phases of the process.

Disputes between family members are part of the history of inheritance. There is no formula that can avoid these quarrels, but there are some mechanisms and measures such as MEDIATION that help to solve them in the best possible way, agreements that can be enforceable once they are made into a public document.

For all those future testators who have to make a will in favour of “many heirs in equal shares” to reflect on whether the legal figure of community of heirs would be worthwhile… They will create conflicts, family disagreements and a range of emotional discomforts.

These are the most feasible inheritances for the testator who, in a simple way, wants to make it clear that for them all “the parts are equal” ….. Although they do not foresee in the vast majority of cases, it will be a very conflictive or emotionally destructive inheritance for the co-owners of the community property.

A good heir is worth more than many legacies!