[gdlr_notification icon=”fa-thumb-tack” type=”color-background” background=”#5eafd1″ color=”#ffffff”]27 Jun, 2016.- Where there is no testamentary, conventional or judicial administration, the rules that the Civil Code devotes to the administration of the ordinary co-ownership shall apply and, specifically, its Article 398, under which, for the co-heirs to carry out acts of administration over the estate, the agreement of the majority of the participants shall be required.[/gdlr_notification]
“SECOND.- Cassation appeal. Hereditary community. Administration. Representation for the exercise of shareholder rights over a block of shares belonging to the community. Applicable case-law doctrine.
1. The appellant, under the third paragraph of Article 477.2 LEC, in opposition to the case-law doctrine of this Chamber, lodges a cassation appeal articulated in a single ground.
In that ground, it alleges infringement of Article 398 of the Civil Code. The appellant argues that, even accepting the thesis that this is not a dormant estate (herencia yacente) and therefore a hereditary community, application of Article 398 of the Civil Code is not appropriate because there is a normative hierarchy governing the ordinary co-ownership, conditional on the existence of special provisions, in this case Article 1020 of the Civil Code, in relation to Article 795.2 LEC for the testamentary proceedings (juicio de testamentaría), special rules applicable to the situation of hereditary indivision, whether the inheritance has been accepted or is pending acceptance. In support of its argument it cites the Supreme Court judgments of 27 June 1963, 15 April 1982 and 16 November 2010.
2. For the reasons set out below, the ground raised must be dismissed.
As the Audiencia’s judgment rightly states, once acceptance of the inheritance has been established, in this case tacitly, application of Article 795.2 LEC, by reference from Article 1020 of the Civil Code, is not possible. The basis of this conclusion lies in the very provision of the rule. In this sense, in line with the heading of section five, chapter five, title three of book three of the Civil Code (“On the benefit of inventory and the right to deliberate”), the very Article 1020 of the Civil Code, on the basis of Article 1011 of the same body of law, makes that reference conditional on the acceptance of the inheritance with benefit of inventory having been made through judicial channels.
Since the inheritance has already been accepted, without recourse to the benefit of inventory, the reference to the application of the special rule contained in Article 795.2 LEC, is unfounded. Thus, given the lack of regulatory provision on this question in the regulation of the hereditary community, and the circumstances of the present case, absence of testamentary provision in this regard and lack of agreement among the co-heirs, the correct reference, given the situation of community, is to the rules governing co-ownership, specifically to Article 398 of the Civil Code, which establishes for the administration of common property the majority principle, understood as the agreement taken by the participants representing the greatest amount of interests or greatest capital of the community.”