The Government sent to parliament a proposal for legislative authorization that provides that a single heir, a spouse of a married heir with community property or an executor can unblock the sale of undivided inheritance properties.
“Whenever there is no aforementioned agreement regarding indivision, any heir may judicially promote the sale of property integrated into the estate, without requiring the consent of the others”, says the text of the proposed law.
Thus, any heir, the spouses of heirs married under a community of property regime (sharecroppers), or an executor with sharing powers, can proceed in court with the sale of properties, urban or rural, integrated into inheritances that remain undivided for more than two years due to lack of agreement between the heirs.
If an inventory process has been “requested” from the estate, the sale of a property may be carried out even before the end of the two-year period.
The executive’s initiative, referred to in the bill as “Special Process for the Sale of Immovable Property Integrated into Undivided Heritage”, aims to introduce changes to the Civil Code and is part of a legislative package aimed at increasing the supply of homes for sale or rent in a context of housing crisis.
The process includes two phases, one for the “sale and establishment of the base sales price of the property, and another for “the execution of the sale under previously defined conditions”.
During the first phase, the process can still be suspended if, in the meantime, the heirs agree to the sharing or direct sale of the inherited property.
If the blockage continues, in the second phase the sale value is then fixed “based on expert assessments” that both the requesting heir and the rest must add to the process, in order “to promote the sale at market value”.
“In the absence of agreement on the base sales price, it is set by the court based on objective assessments”, indicates the proposal.
At this stage, the rule will be sales through electronic auction, to ensure “greater transparency and competition”.
The executive’s proposal also says that the heirs have the right to redeem the assets sold, thus allowing, at the sale price, the property to remain in the hands of one of the heirs instead of being sold to third parties.
In the preamble of the document, the executive also assumes the intention of granting the author of the succession more power and “greater freedom” to determine and plan his succession, since the current law grants “little margin to promote succession effects in accordance with his will”.
Thus, the author of the succession is now able to define the terms of the sharing of his assets, determining “the assets that must make up the hereditary part of the heirs”, and to request, if he so wishes, a “succession arbitration” to resolve any disputes, without the heirs losing the chance to appeal the arbitration decision in court.
The proposal also foresees the creation of the figure of “an executor with sharing powers”, namely for the “settlement, administration and sharing of the inheritance”, as he will assume the functions of head of the inheritance and remove from the heirs “the impetus for sharing and defining the terms”.
The Government also intends to change the rules of the head of inheritance, strengthening the “powers of administration and liquidation of the inheritance”.
The diploma provides that five years after the opening of the succession, or two years after “expiry of the indivision agreement”, the head of the couple “must promote the division by agreement or request the inventory process”.
For the Government, the new mechanism for the sale of properties included in blocked inheritances “weighs the interests of the heirs”, encouraging them to negotiate and reach an agreement “without neglecting the interests of the remaining heirs and creditors in terms of protecting the value of the inheritance”.
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