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El interés del menor no queda mermado por el cambio de domicilio pues sus necesidades de habitación quedan satisfechas a través de la vivienda alternativa que también fue familiar y que es propiedad de ambos progenitores

TS, Sala Primera, de lo Civil, 5/2015, de 16 de enero


“La finalidad de lo dispuesto en el artículo 96 del C.c ., es la de proteger el interés del menor asegurándole en todo caso el uso de un- vivienda, que será la que fue vivienda. Pero ello no impide que caso de existir más viviendas en las que el interés del menor, quede igualmente protegido, no pueda atribuirse al dicho menor el uso de otra vivienda que no sea la que ha constituido el último domicilio familiar. Entendemos que si el menor tiene suficientemente cubierta su necesidad de vivienda, no está justificado limitar las facultades de disposición del derecho de propiedad que ostenta el recurrente sobre la vivienda que actualmente ocupan el menor y su madre La vivienda de la C/ DIRECCION000 , ha sido también domicilio familiar, sin que la demandada cuestione que tal vivienda reúna las características necesarias para ser ocupada por el menor, y por ello debe extinguirse la atribución de uso sobre la vivienda de la C/ DIRECCION001 , atribuyendo al menor el uso de la vivienda sita en la C/ DIRECCION000 .”

2.- Recogiendo las ideas básicas de la jurisprudencia de esta Sala, aplicándola al caso que ahora se plantea, aparece que el interés del menor, siempre prevalente, no queda mermado por el cambio de domicilio. Precisando, además, que la vivienda que ahora ocupa es la vivienda que fue familiar en el momento de la separación, pero la que la Audiencia Provincial ha fijado a partir de ahora fue también la vivienda familiar en su momento. En ambas, ha sido algo indiscutido que el interés de menor quedó cubierto. Por tanto, como dice la sentencia de 5 noviembre 2012 , antes transcrita en lo necesario, las necesidades de habitación del hijo menor quedan satisfechas a través de la vivienda alternativa que ha señalado la sentencia recurrida.

Lo anterior, sobre la vivienda alternativa, lo ratifica la sentencia de 16 junio 2014 , también transcrita. Y la anterior, de 29 marzo 2011 advierte que pueden modificarse las medidas por cambio de circunstancias. En el caso presente, la circunstancia de quedar disponible el piso propiedad de ambos, pro indiviso, es circunstancia de hecho que, como entiende la Audiencia Provincial es bastante para cambiar el régimen sobre la vivienda, tanto más cuanto las situaciones de crisis en la convivencia no pueden dar lugar a una verdadera, en la práctica, expropiación del propietario, como han dicho las sentencias citadas anteriormente, de 29 marzo 2011 y de 5 noviembre 2012.

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