Buying and Selling with Usufruct: An Unexpected Twist

In a real estate transaction, every detail counts. A small omission or a simple misunderstanding can transform what should be a straightforward transaction into an intricate legal problem that can cost you as much as the price of the property you paid. This is the story of a property in Mijas, a jewel of the Costa del Sol, and how a usufruct, a misunderstanding and a lack of knowledge of real estate law turned the lives of several people upside down.

The Beginning: An Inheritance and a Girlfriend from the Past

When an 89 year old man, owner of a house in Mijas passed away, he left a splendid house valued at 759,000 euros to his three children, who, once the inheritance was settled, decided to put it up for sale in order to share the money they made from it. But what these heirs did not consider was a decision that their father had made in 2012: to cede the life usufruct of the house to his British girlfriend, a fact that would later prove to be fundamental.

The Sale: A Pact and an Overlooked Detail

After some putting the sale in the hands of a real estate agency, several visits and some offers received, the heirs opted to sell the house. A Dutch retired couple, perhaps looking for a sunny retirement, became interested. The agreed price was €685,000, and after signing a deposit contract, everything seemed to be going smoothly.

However, on the day of signing before the notary, a warning arose that would change everything: the notary referred to the existing usufruct, for information purposes; something that was also clearly reflected in the Nota Simple and that any real estate professional, with a minimum of knowledge, would have known how to interpret. The buyers and the real estate agent, mistakenly guided by a previous conversation with the heirs, minimized the importance of this legal detail. During one of the visits, one of the sons explained to them that the belongings there belonged to a former girlfriend of his father's who used to use the house. They mistakenly thought it was a mere formality, something from the past. A professional real estate agent, trained and with a minimum of ethics, would never have overlooked this detail; but this was not the case.

The Conflict: The Right of Usufruct and an Unexpected Surprise

Spring arrived and, with it, an unexpected visitor: the British usufructuary. Armed with her entitlement and evidence of registration, she showed up at the house, unleashing chaos. What followed was a lawsuit for trespassing, but not for usurpation, which complicated the horizon for the new owners and means that, if necessary, an eviction order issued by a judge can be obtained in less time (yes, there is the possibility of a judge issuing an order to evict them from the house that they themselves have paid for!) Here began a real nightmare for the new owners: a complicated, costly and headwind legal process for the new owners.

The Dilemma: Pay or Lose

Faced with this situation, the new owners found themselves between a rock and a hard place. The heirs were disinformed, claiming that during one of the visits they were informed of the use that this third person was making of the property and that, in addition, the notary had warned them, which made the annulment of the sale (Redhibitory action, regulated by article 1486 of the Civil Code) seem complicated; and the usufructuary, very well advised and with the law on her side, made them an offer: to sell them the usufruct for 242,880 €. This was not a random or capricious figure, it was a price calculated by means of the "Rule of 89", which would have been justified in any judicial process. Furthermore, the offer was calculated on the value of the property, which was appraised at €759,000 instead of the €685,000 they ended up paying.

Now, this couple must face a shocking decision: pay a considerable sum or face legal proceedings and live with the uncertainty of how long they will actually be able to enjoy the house they paid for.

This case reminds us of the vital importance of being well informed and well advised at every step of a real estate purchase. A simple "Legal Verification", which costs only 99€ and we will send you in 24-48h online, would have warned of the problem, the risk and how it should have been solved even before signing and paying the earnest money. Don't gamble, buy safe!