If I have been encouraged to write these lines it is for two reasons:
a.- Due to the widespread belief among many people who go to the Notary that minors cannot own property.
b.- And because minors acquire property, normally through inheritance, and more frequently than we can imagine, and not planning for these situations generates, to put it very mildly, complications.
What I say is so true that in recent days I have come across up to four cases of operations (sales, inheritances and mortgages) in which minors have been interested, and who have come to me because they are people in my closest circle.
In order to explain how the property of minors is sold or mortgaged, I believe we should do some pedagogy and make a brief reference to the concepts of legal capacity, capacity to act and parental authority.
LEGAL CAPACITY
Minors can acquire property, as long as they are subjects of law, that is, they have what is called legal capacity, which is acquired by the mere fact of birth (complete detachment from the maternal womb) and is extinguished with death.
THE CAPACITY TO ACT
However, a minor cannot act alone in the legal world, that is, they cannot enter into contracts, since they lack the necessary knowledge to assess the consequences of their actions.
This idea, however, is often called into question by reality itself, which allows us to see minors with much more judgment than their parents.
This is why minors need other people to look after their interests and represent them in the actions that affect them.
PARENTAL AUTHORITY
It is the function that parents have by the mere fact of being parents, and which implies rights and many obligations, to take care of their children and look after their property interests.
Parental authority corresponds to both parents, jointly (except for minor acts), even in cases where custody and care corresponds to only one of the parents, as a result of their separation and divorce.
For example, if the parents are divorced, the sale of a minor's property requires the consent of both parents, even if the minor only lives with one of them.
If there is only one parent, due to the death of the other, or when one of them has been deprived of parental authority, representation, in these cases, will correspond to only one of them, the widower or the one who has not been deprived of parental authority.
LET'S RECAP
Acts in which minors are interested, as they do not have full legal capacity, must be carried out by their parents.
JUDICIAL AUTHORIZATION
Although parents have the administration of the assets of minor children, there are certain acts, Among which are the sale and mortgage of real estate, in which parents need an additional requirement, which when raised to people, always generates a bit of fear, and to a certain extent a lack of understanding of the law, since every parent thinks that they always do the best for their child.
This requirement is judicial authorization, which leads us to the idea of a trial, costs and delays.
IS JUDICIAL AUTHORIZATION ALWAYS NECESSARY?
Judicial authorization may be excluded in certain cases, such as:
1.- The consent of the child when he or she is over 16 years old. That is, from the age of 16, children are presumed to have a certain degree of maturity, and they can consider whether what their parents intend to do with their property is harmful to them. In this way, if the child over 16 years old signs the deed, judicial authorization would not be necessary.
2.- It is also possible that when a minor receives property through inheritance or donation, the person who gave it to him, that is, the testator or donor, provides in the will and in the deed of donation, who should be the person to administer those assets, and how the administration should be carried out.
In this way, it could be established that judicial authorization is not necessary for the sale or mortgage of such assets, all justified by the trust placed in the person appointed as administrator.
AN EXAMPLE
An example of a testamentary clause in this sense would be the following:
“The assets and rights left to ** will be administered by ****, to the exclusion of any other person.
The administrator shall have the broadest powers of administration, representation and disposition with respect to said assets, with no limits other than those provided for by law for guardianship, the regulation of which shall be of supplementary application in matters not provided for by the testator.
However, the administrator will not need judicial authorization under any circumstances, not even for those acts in which the law requires it from guardians, and may take possession of the hereditary assets with the obligation to inventory them."
This clause is very common in the wills of divorced parents, who intend in this way that the assets that the child may receive will in no case be administered by the other parent.
THE SPECIALTY OF CATALONIA'S LAW
Within the law of Catalonia there is another alternative to avoid judicial authorization for the sale or mortgage of the assets of minors, since this can be replaced by the consent of the two relatives.
Article 236-30 of the Civil Code of Catalonia tells us:
Judicial authorization may be replaced by consent to the act, expressed in a public deed:
b) From the two closest relatives of the child, in the manner established by article 424-6.1.a.
It goes without saying that relatives cannot be just anyone, as they must meet the following requirements:
1.- There must be one from each line, that is, one from the father's side and another from the mother's side.
2.- They must be the closest within each line. Therefore, first the grandparents, then the uncles and cousins.
3.- If there are two relatives of the same degree, the oldest one must be the one.
The role of relatives is to verify that the act, sale or mortgage, is carried out for the benefit of the minors, or at least that it does not harm them.
Lleida, February 11, 2016
