Second home – What is it, definition and concept | 2022

The second home is real estate that a person acquires, but not as a habitual residence but as an occasional residence or as an investment instrument to rent it.

These second homes, as their name suggests, are not the habitual residence constituted by the person or persons who acquire it. The person who acquires this property is not registered at the address where it is located and therefore is not considered a dwelling.

This definition as a dwelling is important to know if there is a possible crime of trespassing or a crime of usurpation.

This second home has three problems with legal overtones that we must deal with:

  • Taxation: It depends on whether it is only a home that the person can use in seasons or if it is an investment instrument.
  • Occupation: having an empty property can cause a problem of squats, that is, people who without valid legal title acquire possession by force in that home.
  • Division: If this second home is acquired by spouses under a community property regime and the couple divorces, what happens to this asset? Is there any difference with the habitual residence?

Second home taxation

The fact of having a second property must be declared in the Income Tax, but the taxation will vary depending on whether it is rented or is for the enjoyment of the person who acquires it.

  • If not rented: there will be no real estate returns. So, in this case, the taxation is lower and will vary depending on the cadastral value of the real estate. But, if there are no returns for this second home, why should we pay taxes? The tax administration understands that the simple fact of having this home demonstrates the economic capacity to be able to obtain income from it.
  • If rented: there will be real estate returns. These are taxed as if they were income from work or economic activities.
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What happens if the second home is occupied by a person who does not have a valid legal title? This will mean the beginning of a judicial process of eviction because it constitutes a crime of usurpation.

  • Trespassing is entering or staying without permission on private property that does not constitute a dwelling, that is, abandoned, unfinished or unoccupied housing.

marital division

As the second property is not the habitual residence, it does not have a differentiated regime in the division of the joint property in a divorce. Therefore, if this home is part of the community property and has to be liquidated, it is divided 50% for each spouse.

If it were a regular home, which is the family home, this property has a special qualification: pro undivided.

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