Kearny, NJ asked in Real Estate Law for Puerto Rico

Q: Can I build a second floor on my parents house in PR after their death legally. I have 3 siblings ,

I am aware of the real estate laws without a will. Do I need my sibling’s permission and is the second floor considered a separate residence ?

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1 Lawyer Answer
Rafael  Pagan-Colon
Rafael Pagan-Colon
  • San Juan, PR
  • Licensed in Puerto Rico

A: Building the structure is not the issue. Your would not be able to file ownership of the structure, so long as probate procedures have not been completed. No one can assume or transfer a right that they do not personally possess. Allow me to elaborate.

Upon a person's passing - assuming no Will was left by the deceased - a declaration of heirs should be procured either before a court of primary instance or before an attorney-notary authorized to practice notary law in Puerto Rico. After the declaration of heirs, an estate tax filing must be filed with the PR Treasury Department, who'll issue a tax waiver, assuming that no taxes are owed on the estate. At that point, a copy of the declaration of heirs resolution and the tax waiver must be filed with the Property Registry. Similar steps must be taken with the Municipal Center for Income Collections ("CRIM", in Spanish).

Once the property is in you and your siblings' names, then - Yes - you do need their permission to build a second story. Be advised that your parents' home is still just only one property. A surface right deed ("derecho de superficie") should be subscribed by the owners (heirs) of the real estate, to grant you the right to build on the roof of the house. Appropriate permits must be procured through a licensed engineer from local government agencies, to guarantee that the current structure has the physical tolerance to sustain a new structure on top. A certified copy of the surface right deed must also be filed with the Property Registry, to obtain an independent property ("finca") number separate from the original structure. Afterwards, an edification act (Acta de Edificación) must also be subscribed to file the new structure that you built with the Property Registry; which will (a) qualify the documents presented; (b) register the value of the new structure under a separate property ("finca") number, and (c) annotate a Homestead Right, if you plan on dwelling in the structure as your primary residence. With a separate property ("finca") number, you should also procure from CRIM an independent cadaster number.

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