Article 28 of the Mortgage Law, which restricted the sale of an inherited property, was abolished

From now on heirs are able to sell the inherited property without waiting two years
From September 2021, heirs are allowed to sell the inherited property without having to wait the two years required by the mortgage law.

On 2 June 2021, the government issued a decree eliminating the controversial article 28 of the mortgage law. From 3 September 2021 this article will cease to be effective. The so-called "Law of Cuba" restricted heirs from selling the property directly until after two years – a problem that, unfortunately, has increased due to the pandemic, according to the report "Housing inheritance during the pandemic" by Fotocasa.
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What does Article 28 of the Mortgage Law states?

Article 28 of the Mortgage Law indicated that "the inscriptions of properties or real rights acquired by inheritance or legacy, will not take effect with regard to third parties until two years after the date of death of the deceased".

This implied that when a non-direct relative (other than a child, parent or spouse) inherited the property, the property could not have a new owner until after two years in case a forced heir (such as an unacknowledged child) appeared and became the ipso facto owner of the property.

How did Article 28 affect heirs and buyers?

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This article meant that, if a property was sold with this particularity, the new owner could lose his property to the legitimate heir, although he would still have to pay his or her mortgage.

In addition, banks are reluctant to grant mortgages in this case, which also makes it difficult to obtain financing. The buyer of an inherited flat could lose the property, but would still have to pay the mortgage.

On the other hand, the heir had problems selling his home until two years after the death of the previous owner. On the other hand, he or she was forced to sell it for a below-market price if heir needed to sell it before this period because of the risks involved.

What does the elimination of this article of the Mortgage Law imply?

The repeal of this article of the mortgage law will allow all properties affected by this regulation to be free of it, i.e. any inherited property (regardless of the type of heir) can be registered in the Land Registry with a new owner without any waiting period, so it can be sold without restrictions.

In addition, people who have bought a property within this context and are in the "two-year waiting period" will be released from it and can register as owners of the property without any problem.

Although it was controversial that this article was not removed in the change to the new mortgage law made in 2019, the pandemic has played an important role in the government taking this decision now. The pandemic, according to Fotocasa's report "Housing inheritance during the pandemic" has caused the increase of housing inheritances in our country during the last year.

The increase of heirs who sold their home was 23% of the total number of sellers in 2021. Meanwhile, heirs renting a home accounted for 9.8% of the total number of landlords.

What does the elimination of this article of the Mortgage Law imply?

Article 28 of the mortgage law makes sense if we put it in context. This article was written in 1946 (less than 50 years after Cuba's independence from Spain).

This regulation made sense 75 years ago, as it allowed the descendants of Spaniards who had emigrated to other countries (especially in the former colonies) time to receive the news of death and travel to Spain to receive their share of the inheritance.

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