Abolition of art. 28 of the Mortgage Law and Inheritances

On September 3^rd 2009, Article 28 of the Mortgage and Inheritance Law was repealed. This normative change meant an important change for the heirs, since the validity of the article supposed a brake for the free transferability of the property. However, what did article 28 of the Mortgage and Inheritance Law imply? Can the heir freely sell the property nowadays? Who is affected and who is free from the new regulation?

The Cuban Law or the art. 28 of the Mortgage Law

Article 28 of the Mortgage Law was a limitation to the full ownership of an inherited property. Specifically, it prevented heirs from effectively registering the ownership of a property until at least two years since the death of the deceased.

The forced heirs were exempted from this limitation. This meant descendants, ascendants and spouses of the deceased.

This was intended to protect heirs that were not present at the time of death. This was a recurrent practice among the relatives displaced to the Cuban colonies (let us not forget that the article dates back to 1946), and hence its name.

The rule, therefore, granted special protection to these relatives, giving them a prudential time to return and claim their inheritance before the ownership of the assets was attributed to more distant relatives, such as cousins, nephews, nieces or even siblings.

Consequences of the art. 28 of the Mortgage Law

As a consequence of this article, the registration of real rights in favor of “distant” heirs was not effective against third parties until the grace period had elapsed.

This meant that the heir could not mortgage the real estate. Nor, could they put the property on the market under optimal conditions. Moreover, the fact is that if within this period, heirs with a better right appeared, they would be the owners. The potential buyers or financial institutions were not willing to take that risk.

What is the current situation? Can I sell my inherited property?

The abolition of Article 28 of the Mortgage Law implies the renunciation of the special protection of the legatee. Protection that, as we have seen, has historical causes difficult to defend nowadays.

The heirs are free, therefore, to sell the property or to establish mortgages as long as they have received it after September 3^rd, 2021, the date of entry into force of the Law.

And, what happens if I got the property before September 3^rd?

In this case, the now repealed article is applicable. This means that, until two years have elapsed from the date of death, the eventual forced heirs will retain their privileged right.

Therefore, those who have received the property prior to this date will not be able to enjoy the advantage of the abolition of the article. Only those who have inherited it previously will be able to sell or mortgage the property without fear that an heir with a better right will appear to claim the ownership of the property.

Contact us if you need more information about your inheritance rights or how to enforce them, as well as advice on taxation and capital management.

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