LARIOS TRES LEGAL

After a breakup, how can I recover my property?

Sentimental relationships, regardless of their duration, involve not only an emotional bond between the parties, but also, in many cases, cohabitation and the acquisition of property. After a romantic breakup, it is common for conflicts to arise regarding the distribution of the belongings that both parties have acquired or shared during the relationship.

In this case, we are going to analyze which ways our law offers to claim the ownership of such belongings in the case that the sentimental relationship is different from marriage or domestic partnership.

THE CONCEPTION OF THE GOODS IN THE COUPLE.

Independently of the type of sentimental relationship or of the depth of the same one, tacitly or expressly a material economic system is established. In this system conceived by the parties, goods of all kinds and property are contributed. Commonly, these are the goods where the controversy lies, thus generating completely undesirable situations.

In order to resolve the aforementioned conflicts, it must be assumed that the individually owned assets will be those that each person acquired individually during the relationship and belong exclusively to the one who bought them. On the other hand, the goods that both parts, jointly acquired, will be considered goods in common and on them a co-ownership will exist.

Regarding the former, the person interested in claiming his or her belongings may do so out of court, negotiating with his or her ex-partner. Being impossible to be understood constructively, the interested party will have to file the corresponding civil lawsuit before the courts so that his right of property is recognized. Regarding the latter, after the acquisition of the property by the parties, they can establish a pact on the property in case of rupture. Otherwise and given the undesirable situation;

  • it will be possible to opt for agreeing a distribution of the goods. And/or failed this option and not reached the agreement,
  • they will have to request judicially the extinction of the co-ownership. This scenario may involve the sale of the property and the subsequent distribution of the profits obtained or, it could even be considered that the property be awarded to one of the parties of the couple, while the other is economically compensated.

THE RELEVANT ACTIONS

Putting as the focus of the analysis those assets that belong to one of the parties, our legal system establishes clear parameters to declare the ownership and recover the possession of the same. Specifically, we are going to refer to actions par excellence of our Civil Code; reivindicatory action and declaratory action of dominion.

REIVINDICATORY ACTION

Action of actions that is born from the conception of the right of ownership, understood as the enjoyment and use of a thing without any limitation other than those established by law. But it is in the second paragraph of article 348 that puts the pike in Flanders when it dictates that the owner has action against the holder and the possessor of the thing to claim it”.

In case our article lacked clarity, it is enough the jurisprudence that has also defined the claiming action, all converging in that it is an action that the owner who does not possess can exercise against the non-owner possessor, with the objective to obtain a change of the possessory tone of the good. While it is true, our Courts establish which are the essential requirements for our action to prosper. Namely:

  • To justify that the plaintiff is the legitimate holder of the domain of the property, therefore, he will have to prove title deed that accredits the right of ownership (public deeds, purchase invoices, proof of payments, registrations, etc.).
  • Formally identify the lost property. It can be by virtue of the previously mentioned titles.
  • That the possession is being exercised by a person who does not enjoy the right of ownership over the property. The party interested in initiating the action must prove that the other party is in possession of the property.

The success of this action begins with gathering all the necessary documentation that firmly structures the arguments that support the plaintiff’s rights. Without a notable evidentiary factor, the action is meaningless.

DECLARATORY DOMAIN ACTION

The purpose of this action is to provide legal certainty in a situation of weakness of the owner. It intends to proclaim judicially that the plaintiff is the owner of the property against the party that denies the fact or attributes motu proprio the right of ownership over the property.

This option does not seek a restitution of the possession of the thing, but rather to verify the reality of the title. Therefore, it may be brought even when the plaintiff has not been deprived of possession of the property.

It will be convenient to bring this action when there are incomplete, doubtful or defective titles of ownership, or when an individual property can be confused with a common property.

The essential requirements of this action coincide with the action previously analyzed, with the exception of the contrary possession of the property, which in this case is not contemplated as an object of this action.

CONCLUSION

Within all the sentimental difficulties that can derive from a breakup, sometimes, a compromising situation can be added to it by virtue of the assets that have been used as a couple indistinctly of the property. Fortunately, our legal system provides a solution to these scenarios which, obviously, is not only intended in this sense.

The reivindicatory action is a solution where the evidentiary burden resides in the plaintiff and to use all forcefulness against the possessor must be founded with property in all senses.

On the other hand, the declaratory action of dominion is a useful resource in order to dissipate the real doubts or generated by any of the parts on the property of the good. For its interposition it is not necessary to be deprived of possession.

The difference between the two is that the former seeks to recover the possession of the lost thing and the latter does not seek a condemnation of the defendant to return the thing, but the recognition of the property rights over it.

Autor

Gonzalo Nuevo López 
Abogado- Attorney

Datos de contacto
 + 34 660 938 836 
 gonzalo.nuevo@lariostreslegal.com

Servicios
Reclamaciones bancarias
Responsabilidad civil
Litigación
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