The short answer: your brother has the right to use the house, but not to keep it to himself. You have the right to use it too, to be compensated if he stops you, and to leave the co-ownership whenever you choose. Waiting almost never works. What does work is putting your request in writing and then moving up one step at a time.
In this article
What is happening, in legal terms
There are two different situations, and it helps to know which one you are in, because the route changes.
- The estate has not been divided yet. The house belongs to the community of heirs, that is, to all the heirs together, and nobody yet owns a specific share of that property.
- The inheritance deed has been signed and the house went to several of you. You are co-owners, each with a percentage. In Spain this is called a proindiviso.
In both cases the underlying rule is the same. The Spanish Civil Code lets each co-owner use the shared property, provided they do not prevent the others from using it according to their right (article 394). How it is used and managed is decided by the majority of shares, not by whoever holds the keys (article 398). If there is no majority, a judge decides.
Watch out for a case that looks the same and is not: if the person living in the house is the widow or widower with a life interest (usufruct), they are entitled to exclusive use. We explain it in the surviving spouse's usufruct.
Can I ask him to pay for living there?
You can, but it is not automatic. The Spanish Supreme Court has held that one co-owner using the property alone is not unlawful in itself: it becomes unlawful when the use shuts the others out (judgment of 29 March 2022). In other words, as long as nobody objects, the others are taken to tolerate it.
That is why the first serious step is a formal demand, usually a burofax (a registered letter with certified content and proof of delivery), asking for one of two things: to share the use or to pay the others compensation. The compensation is normally worked out from what the house would fetch in rent, for the share belonging to those who do not use it. The cautious assumption is that the courts will recognise it from the moment there is proof that you asked and were ignored, not from the date of death. Every month without a demand is a month that is harder to claim.
If the estate is still undivided there is a nuance: whatever the occupant owes for the use is settled in the division of the estate, together with the rents, income and expenses each heir has had (article 1063 of the Civil Code). It is claimed for the community of heirs, not for you alone.
"Your brother may use the house. What he may not do is use it as if the rest of you did not exist."
And the bills: who pays them?
Upkeep costs and those that go with ownership (property tax, community fees, insurance, special levies) fall on everyone, in proportion to each share (article 395). It stands to reason that whoever lives there pays for what he consumes, such as electricity and water. Keep proof of everything you pay: it is all settled at the end.
Your options, from least to most conflict
1. A written proposal with a price
Often the deadlock is not bad faith. It is fear of losing a home, or not knowing what the house is worth. A valuation and a specific proposal (you keep it for this much, or we sell for this much and share it out) moves things further than ten family lunches.
2. He keeps it and pays you your shares
If he wants to go on living there, this is the natural way out. In the Valencia region it also carries a large tax advantage when done properly: set up as a termination of co-ownership (extinción de condominio), the person keeping the house pays stamp duty (AJD) at 1.4% on the share acquired, instead of the 9% transfer tax (ITP) due on a sale. If the inheritance has not been signed yet, the house can be allotted to him directly in the division, with cash paid to the others (article 1062). The steps and conditions are in ending co-ownership of an inherited flat.
3. Sell to a third party and split the money
Everyone has to sign. If he agrees to sell but does not want to leave until the last day, handing over the keys can be agreed in the sale itself. We cover the taxes in selling an inherited house in Valencia.
4. The formal demand
If he does not answer or keeps stalling, send the burofax. It should say what you are asking for, by when, and what you will do if there is no reply. It does three things: it proves you do not tolerate the exclusive use, it opens the door to compensation, and it shows you tried to negotiate. That last point is no longer a detail. Since April 2025, before filing a civil claim in Spain you must first have attempted a negotiated solution (article 5 of Organic Law 1/2025), and direct negotiation between the parties or their lawyers counts.
5. The court
If the estate is undivided, any co-heir can apply for a judicial division of the estate (article 782 of the Civil Procedure Act). If you are already co-owners, you bring an action for division: nobody is obliged to remain in co-ownership (article 400) and, since a house cannot be split, it is either allotted to one owner who pays the others or sold and the price shared (article 404).
Without agreement, that sale ends up being an auction. It is slow and usually fetches less than an ordinary sale. That is why the claim is often used to get the other side to negotiate in earnest. While the estate remains undivided, the co-heirs can also ask for the occupant to leave the house at everyone's disposal: the Supreme Court has allowed this since its judgment of 16 September 2010, provided it is sought for the benefit of the community of heirs and not of one person.
The other ways out, including the estate partitioner appointed by a notary, are in heirs who cannot agree on a property.
Deadlines that are running
- The right to ask for a division does not expire. Neither the division of the estate nor the division of shared property is time-barred between co-heirs and co-owners (article 1965). Ten years going by does not take the right away.
- Compensation does suffer with time. What you never asked for is hard to collect backwards.
- The bills keep coming. Property tax, community fees and insurance build up for everyone, whether you use the house or not.
- There may be an agreement not to divide. It is valid for a maximum of ten years (article 400). The will may also have barred division for a time. Read it before you make a move.
Mistakes that make it worse
- Changing the lock or cutting off the electricity. He has a right to be there. It can land you in serious trouble and costs you the moral high ground.
- Stopping your share of the property tax or community fees as a way of applying pressure. The debt is yours too, and the house answers for it.
- Doing everything by word of mouth. Without a dated document, three years from now nobody will be able to prove what was asked.
- Signing the inheritance without thinking about the house. The cheapest moment to sort it out is the division of the estate. After that, every move costs more.
- Agreeing a value by guesswork. Without a valuation, any figure looks like a rip-off to one of you.
When it makes sense to get help
When you have talked it over twice and nothing has changed, when there are more than two heirs and each wants something different, when the house has a mortgage, or when you are not sure whether the inheritance has been accepted. At that point a well-drafted letter and a clear calculation of what each way out costs each person usually unblock things without going to court.
Frequently asked questions
Can my brother live in the inherited house without paying anything?
He can use it, because it is his too, but not in a way that shuts the others out. If you ask him in writing to share the use or compensate you and he does not, you can claim compensation.
From when can compensation for the use be claimed?
The cautious assumption is that it will be recognised from the date of a formal demand with proof of delivery, such as a burofax, not from the date of death. That is why it pays to send one early.
Can I force my brother to sell the house?
Nobody is obliged to stay in co-ownership (article 400 of the Spanish Civil Code). Without agreement you can ask the court for a division, which for a house ends in allotment to one owner or sale at auction and sharing of the price.
Does the right to ask for a division expire?
No. The action to divide an estate or shared property is not time-barred between co-heirs and co-owners (article 1965 of the Civil Code).
What tax does my brother pay if he keeps the house?
If it is done as a termination of co-ownership, stamp duty (AJD) at 1.4% in the Valencia region on the share he acquires, instead of the 9% due on a sale.