• Housing Article 28 or the law that can leave the buyer without a home but with a mortgage in the face of an unexpected heir

Future home buyers will have one less reason to worry about today.

This Friday, September 3, article 28 of the Mortgage Law disappears, an article that in practice has frustrated not a few operations about to be initialed.

What this article says is that there is a

period of two years

in which the assets of a deceased person without forced heirs will have no effect on the Registry. That is, if someone dies without children and their home passes to their siblings or other indirect heirs, it will not really be theirs for 24 months. In the hypothetical event that an illegitimate child appeared, a handwritten will was found, or an unknown direct heir reappeared, that heir would have the right to claim. And I would win. Hence the nickname of the law,

the Cuban Law,

since it was established in the Cuban war so that putative children could reach the Peninsula and claim what belonged to them.

In recent months, many people interested in purchasing a home have encountered this rule when formalizing their operations, which is why the Government decided to put an expiration date on it.

The day has arrived and as of September 3, the article disappears,

thanks to Law 8/2021, of June 2

, which reforms the civil and procedural legislation to support people with disabilities in the exercise of their juridical capacity.

The norm published in the BOE states that "article 28 of the Mortgage Law is eliminated, since the assumptions that this article is eventually called to protect are very residual compared to the damage it causes in the succession of collaterals and strangers and the traffic disturbance, generating uneconomic situations ".

Risks for the buyer

Most of the buyers who found themselves with article 28 used to cancel the operation due to the risk that it entailed for them, since if in that period of 2 years a direct heir appeared and claimed the property, they could not refuse to return it.

Of course, the buyer kept the mortgage payment.

This risk not only pushed back potential buyers, but the banks themselves, aware that they could be left without the guarantee that backed the mortgages granted, hence many entities refused to provide financing for these cases.

The few buyers who dared to buy in this situation, opted for alternative formulas such as paying a

rent with the right to purchase for two years

and, once that period had elapsed, executing the acquisition.

Or, they assumed that the property could be paralyzed or that the price demanded could be below the market.

Now all these conditions disappear, both for future operations and those that are in force, since the law is retroactive.

E

l heir of a house becomes owner directly,

regardless of the degree of kinship that keeps with the deceased, and may carry out its sale without any charge to the limit.

According to the criteria of The Trust Project

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