Owners of non-habitual properties must impute income for the portion occupied by an ex-partner

Ownership of a property that does not constitute the taxpayer's habitual residence carries specific tax obligations, even when the owner does not reside in the property nor receives rent for it. Recently, the Dirección General de Tributos (DGT) has specified the scope of this obligation in cases of cohabitation or use by third parties, such as ex-partners.

What the DGT has ruled

The query concerned whether a taxpayer must impute real estate income in their Personal Income Tax (IRPF) for the portion of a dwelling that is being used by their ex-partner. The advisory body has determined that the imputation of income is not conditioned on the actual use of the property by the owner, but rather on its availability to them.

As it is not the inquirer's habitual residence and none of the exceptions strictly listed in the current regulations apply, the owner must apply the corresponding percentage to the cadastral value of the property, in accordance with the provisions of Article 85 of the IRPF Law.

What this means for you

This criterion has a direct impact on individuals who maintain ownership of properties that they do not use as their primary residence. If a part of said property is available to a third party (whether a family member, a friend, or an ex-partner) without a formal lease agreement or a situation of use exempt by law, the Administration considers that there is an availability that must be taxed.

In practical terms, this implies that:

• The absence of actual economic income from the use of the dwelling does not exempt one from paying real estate income tax.
• The criterion is based on the capacity to dispose of the asset, not on its physical use.
• The calculation is performed based on the cadastral value according to IRPF regulations.

What should be done

In situations of co-ownership or the use of non-habitual dwellings by third parties, it is necessary to analyze the legal nature of such occupation. It is essential to verify whether the situation fits into any of the legal exceptions that allow for the avoidance of income imputation. Each scenario requires a technical assessment to determine whether the availability of the property generates the tax obligation described by the DGT.