Situations where the owner is defenceless

“Precarious” use of another’s property, enjoying it without any compensation

08 / Feb

More often than this law firm would like, we find ourselves in surprising client situations, such as the “free” use of a property by relatives or friends, who when you ask them “politely” do not want to leave.

Sometimes such a situation is created out of excess trust in the case where a brother asks if he can live in the house temporarily while he is looking for another property, while other times because the person initially owned the property but no longer owns it because it has been auctioned off due to various debts, for example. In both cases, there is “precarious enjoyment” and the situation needs to be solved.

The legitimate occupant becomes illegal when the owner finishes the use and asks for eviction.

If the illegal occupant does not want to leave the property, you should be aware of the legal basis that guarantees the owner’s right to regain undisturbed possession of the property:

Article 348 of the Civil Code indicates that ownership is a right to enjoy and dispose of property without restrictions other than those established by law.

On the other hand, Article 250 of the Ley de Enjuiciamiento Civil (the Code of Civil Procedure) indicates that the execution of the order of eviction for “precario” (= without any compensation) requires a short procedure (although we already know that in Spain, a short procedure can be a utopia) in order to have the right of ownership exercised against those who oppose or obstruct the undisturbed use of the property.

The Supreme Court has given content to the legal concept of “eviction”.

In a recent ruling of 16 September 2022 (Roj: STS 3399/2022 – ECLI:ES:TS:2022:3399), the Spanish Supreme Court reaffirmed its doctrine on the concept of precario, which had already been developed in previous rulings (including 379/2021, of 1 June; 502/2021, of 7 July and 783/2021, of 15 November).

The Supreme Court indicates that precario is a de facto situation involving the free use of another person’s property, whose legal possession does not belong to the occupant.

This means that he has no legal contract guaranteeing the use and occupation of the property (a contract of sale and purchase or an agreement with similar title or a lease), either because he never had a title or because he has lost it (the mortgage may have been executed or a debt may have been enforced and, consequently, the previous owner of the property has been dispossessed).

The Supreme Court continues to reiterate its doctrine by stating that precario exists:

  1. When there is a situation of tolerance without title;
  2. When there is a change of cause due to the ending of the pre-existing agreement (end of lease term, loss of the property in a judicial auction for non-payment of mortgage or other debt);
  3. Or even in the case where the person who owns the property for free has no title and, worst of all, without the will or consent of the owner.

Which aspects must the future plaintiff meet in an eviction claim due to “precario”?

  1. Have legitimate ownership;
  2. Have the property clearly identified;
  3. That the defendant has no title for whatever reason (because he/she never had it or lost it).

What should you do if you find yourself in this situation?

In any case, and if the occupant does not leave the property voluntarily, as explained above, the legitimate owner of the property can initiate an action for eviction by precario regulated in our Civil Procedure Code.

Do not hesitate to contact us if you find yourself in a similar situation and your property is being occupied free of charge and the person does not want to hand over your rightful possession.

Maria Dolores Garcia Santos