21 Feb What should a seller consider when buying a recently inherited property
A common situation that can be a source of serious complication is the purchase of an inherited property. In these cases, it is important to be especially careful when the inheritance comes from a family member, such as a brother or uncle, as the Mortgage Law establishes limitations on the possibility of mortgaging the property within two years after the death of the original owner. This means that if the buyer needs to finance the acquisition through a mortgage, the bank will not grant the loan, affecting both the buyer and the seller. At Barcelona Flat Hunter, we explain the considerations to take into account when buying a recently inherited property.
This limitation, which does not always appear in the “nota simple” (a document that provides basic information about the property), is considered a “legal limitation” and not a “burden,” which surprises many buyers who believe they can buy the property outright. However, if they acquire the property, they must assume the risk that, within those two years, a legitimate heir may appear and claim the property, voiding the sale. In that case, the buyer would lose the property to the rightful heir, although they could sue the “apparent” heir to recover the money paid, legal costs, and contract expenses.
Article 28 of the Mortgage Law establishes that inscriptions of inherited properties have no effect against third parties until two years after the death of the owner, with some exceptions, such as inheritances by “forced heirs.” These heirs include children, parents, and, in some cases, the surviving spouse.
Regarding the surviving spouse, their rights depend on the family circumstances, such as the existence of descendants or ascendants. If there are no other heirs, the spouse has the right to a life usufruct of part of the inheritance.
On the other hand, the inheritance is divided into three parts: the legitimate portion, which must be allocated to the forced heirs; the improvement portion, which allows the testator to benefit certain heirs; and the free disposition portion, over which the testator has full freedom.
If the buyer does not want to assume the risks, one option is to enter into a lease with an option to buy, waiting for the two-year period to pass before formalizing the acquisition.
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