I have lived in a house in the suburbs of Naples for ten years, granted on loan by my husband’s parents, from whom I separated a year ago. We have a minor child, whose custody was granted to me. My husband left home after the separation. Now the mother, my ex-mother-in-law, demands the return of the apartment. At my refusal, I decided to sue me. What does the law say in these cases? Will I have to leave?
Owned by third parties and granted on loan
Basically, she is asking what is the fate of the family home, owned by third parties and granted on loan, on the occasion of the separation or divorce of the couple: the spontaneous answer would be that if the couple splits, the family home owned by a third person, certainly returns to its rightful owner, that is, the third person.
But surprisingly, it does not always go this way.
In fact, it often happens that on the occasion of the marriage, or the birth of the grandchildren, his or her parents, they make available to the couple an apartment, or in any case a property they own.
But what happens if the couple subsequently separates?
Well, in this sense the Cassation has repeatedly expressed itself very clearly.
Already with the ruling, the Supreme Judges considered that the loan that has as an object property of the parent intended for the housing needs of the family of the child constitutes a long-term loan, subject to the rules of the traditional loan.
This implies that the parent can request the release of the property only when the family housing needs cease or when there is an urgent and unexpected need to get the property back.
It should be noted, however, that for the judges it is not necessary that the need be serious as it may also consist in the need to get back the property in order to sell it and thus overcome a sudden economic crisis.
Spouse entrusted with the offspring
In addition, with the ruling it was established that the spouse entrusted with the offspring, or non-self-sufficient adult, assignee of the family home, may oppose the grantor, who requests the release of the property, the existence of an allocation provision, pronounced in a judgment of separation or divorce, only if between the loaner and at least one of the spouse the contract previously set up has contemplated the destination of the assets in a family home.
It follows that, in such eventuality, the relationship arises for a determined use and has, in the absence of an express indication of the expiry, a duration determinable by relations, with application of the rules governing the destination of the family house, independently, therefore, from the occurrence of a conjugal crisis, and is destined to persist or fail with the survival or the disappearance of the family necessities that had legitimized the assignment of the property.
It is, therefore, necessary to distinguish two types of loan
- the loan to meet stable family housing needs, destined to continue as long as the aforementioned needs persist;
- the loan without fixed term, not even implicit, or not intended to meet the stable housing needs of the family, subject to resolution at the request of the comandante.
Therefore, to understand each other, you will be able to continue living in the dwelling loaned by your ex-mother-in-law provided that you demonstrate a family need (a small child who does not know where to live, for example) and / or your former mother-in-law does not show an urgent need and unexpected need to get back the property itself.