Precario in Spain: Living in a Property Without a Contract or Rent

🇪🇸 Read the original in Spanish

Living in someone else's property without signing a lease agreement and without paying monthly rent is a much more common situation in Spain than people usually think. Whether it is due to a flat being handed over between family members, remaining in a property after a couple's breakup, or the occupation of an inherited asset by only one of the co-heirs, the Spanish legal system regulates this situation under the legal concept of precario (tenancy at sufferance/gratuitous occupation). Understanding the limits of this situation, the owner's rights, and the legal channels to recover possession is essential to avoid conflicts that can drag on for years in the courts.

What is "Precario"? Definition and Legal Framework in Spain

The precario is a factual situation that occurs when a natural or legal person occupies someone else's real estate (in this case, a home) without having a title that justifies said possession (such as a rental or purchase contract) and without paying any financial consideration or merced (rent/payment) in return.

Unlike what happens with leases subject to the Ley 29/1994, de 24 de noviembre, de Arrendamientos Urbanos (LAU) (Urban Leasing Act), in a precario situation there is no contractual relationship regulating the periods of stay, mandatory extensions, or the rental price.

The Anchor in the Civil Code

Although the Spanish Código Civil (Civil Code) does not explicitly define precario with a single wording, the jurisprudence of the Tribunal Supremo (Supreme Court) has defined this concept based on several provisions:

• Article 1750 of the Código Civil: Regulates the comodato (gratuitous loan for use) when the duration or specific use of the borrowed item has not been agreed upon. It establishes that, in these cases, the comodante (lender/owner) can claim the return of the property at their own free will.
• Article 444 of the Código Civil: Determines that acts merely tolerated, or those executed clandestinely and without the knowledge of the possessor of a thing, or with violence, do not affect possession. The "tolerance" of the owner is the key to the precario.

Difference Between Precario, Comodato, and "Okupación"

It is crucial not to confuse these three terms, as their legal consequences and the procedures for recovering the property are completely different:

1. The Precario: There is a possession of the property initially consented to (or tolerated) by the owner, without paying rent and without a specific end date.
2. The Comodato: This is a loan-for-use contract (which can be verbal or written) where the property is transferred free of charge for a specific use (for example, "while you study for your university degree") or for a specific period. The owner cannot claim the property back at will until the period or use ends, except in cases of urgent need.
3. Illegal Occupation ("Okupación"): There is no consent or initial tolerance of any kind by the owner. It is an unauthorized entry that can constitute a crime of allanamiento de morada (trespass/breaking and entering) under Article 202 of the Código Penal (Criminal Code) or usurpación de bienes inmuebles (usurpation of real estate) under Article 245.2 of the Código Penal.

Substantive Rules: When Are We Facing a Precario?

For the Spanish courts to determine that a situation is a precario, the following essential requirements must be met:

• Lack of title of the occupant: The resident does not possess any valid lease contract, usufruct, or property right over the real estate.
• Lack of rent payment: The occupant does not pay a price for the use of the property. It is very important to clarify that the payment of utilities (water, electricity, gas) or the comunidad de propietarios (community of owners' fees) by the occupant is not considered rent payment. These payments are understood as expenses of mere use to be able to inhabit the property and do not alter the precario status.
• Real possessor versus precarista: The plaintiff must prove that they have the right to possess the home (as owner, usufructuary, or heir), while the defendant (precarista) lacks such right.

Practical Step-by-Step Procedures to Recover a Property in Precario

If you are the owner of a property occupied under a precario regime and wish to recover its possession, you must follow a strict legal procedure. Taking justice into your own hands is severely punished in Spain.

The recommended practical steps are detailed below:

Step 1: Attempt an Amicable Solution and Formal Demand

Before going to court, it is mandatory and essential to try a negotiated solution. To do this, a formal eviction demand must be sent, usually by means of a burofax con acuse de recibo y certificación de texto (a certified registered mail service with acknowledgment of receipt and certified content). In this document, the occupant must be formally required to voluntarily vacate the property within a specified period (usually 30 calendar days). This step is key, as it will serve as proof before the judge that an attempt was made to resolve the conflict in good faith.

Step 2: Filing the Lawsuit for a Verbal Eviction Trial due to Precario

If the occupant ignores the burofax and does not leave the property within the period granted, a lawsuit for a juicio verbal de desahucio por precario (verbal eviction trial for gratuitous occupation) must be filed before the Juzgados de Primera Instancia (Courts of First Instance) of the place where the property is located. For this procedure, the intervention of an Abogado (lawyer) and a Procurador (court agent) is mandatory, regardless of the cadastral value of the property.

Step 3: Admission of the Lawsuit and Notification to the Occupant

The court will analyze the lawsuit and the documents provided (title deed, burofax sent, etc.). If everything is correct, it will admit the lawsuit and notify the precarista, giving them a period of 10 business days to respond in writing. In their response, the occupant can only allege the existence of a title that allows them to remain in the property (for example, a hidden rental contract) or that they do pay rent.

Step 4: Holding the Hearing (If Applicable)

If the defendant responds to the lawsuit and requests a hearing, or if the judge deems it necessary, a date will be set for the trial (vista). During the hearing, both parties will present their arguments and the relevant evidence will be examined. If the defendant does not respond within the deadline, a judgment will be passed directly without holding a hearing.

Step 5: Judgment and Execution (Lanzamiento)

The judge will issue a ruling upholding or dismissing the eviction. If the lawsuit is upheld, the occupant will be required to vacate the property. If they do not do so voluntarily within the period set by the ruling, the owner must request the execution of the judgment to proceed with the lanzamiento (the forced eviction with the assistance of the court commission and, if necessary, the security forces).

Key Deadlines, Costs, and Figures in the Precario Process

The time factor and the financial cost are two critical variables that every owner must know before starting this legal path in Spain:

• Notice period in the burofax: A minimum of 30 days is usually granted for voluntary eviction before filing the lawsuit.
• Deadline to respond to the lawsuit: The defendant has 10 business days from the moment they receive the court notification.
• Average duration of the judicial procedure: Depending on the workload of the corresponding court, an eviction for precario usually takes between 6 and 12 months to be fully resolved (up to the eviction day). With the entry into force of the Ley 12/2023, de 24 de mayo, por el derecho a la vivienda (Housing Right Act), deadlines can be extended if the occupant is proven to be in a situation of economic and social vulnerability.
• Approximate costs of the process:
• Sending a burofax: between €25 and €35.
• Abogado and Procurador fees: usually range between €800 and €1,500, depending on the complexity of the case and the province.
• Power of attorney for lawsuits (poder para pleitos, either notarized or apud acta): between €0 (if done online for free) and €60 (at a notary public).

Concrete Examples of Precario Situations

To better understand how these rules operate in real life, we analyze two very common scenarios:

Example 1: Transfer of a Property to a Child and Their Partner

• The case: Juan and Carmen own a flat in Madrid valued at €250,000. They decide to hand it over free of charge to their son Carlos and his girlfriend Marta so they can start their life together. They do not sign any contract, and the young couple only pays the electricity bills (around €80/month) and the water. After three years, the couple breaks up. Carlos leaves the flat, but Marta refuses to leave, claiming she does not have the resources to pay a market rent in the area (estimated at €1,100/month).
• The resolution: Juan and Carmen are facing a precario situation. The fact that Marta pays for electricity does not constitute rent payment. The owners must send her a burofax giving her 30 days to leave. If she does not, they must file a lawsuit for a juicio verbal de desahucio por precario. The judge will uphold the lawsuit because Marta lacks a legitimate possessory title after the breakup of the relationship that originated the transfer.

Example 2: The Co-Heir Monopolizing the Property

• The case: After the death of their parents, three siblings (Laura, Javier, and Sofía) inherit a detached house in Valencia. Javier, who is going through financial difficulties, moves into the property without the express consent of his sisters, without paying them any financial compensation, and refusing to allow the house to be put up for sale or rent (the market value of which would be €950/month).
• The resolution: The jurisprudence of the Tribunal Supremo determines that a co-heir who exclusively uses an asset of the inheritance before the partition and adjudication of the estate is carried out is in a precario situation regarding the other co-heirs. Laura and Sofía can jointly file an eviction lawsuit for precario against their brother Javier to force him to vacate the property and allow common use or the liquidation of the inheritance.

Mistakes You Must Avoid

If you find yourself in a precario situation, making any of the following mistakes can turn against you, leading to criminal penalties or delaying the judicial process for months:

• Cutting off water, electricity, or gas supplies: This is the most common and serious mistake. If the owner cancels or cuts off the utilities to pressure the occupant, the occupant can report them for a crime of coacciones (coercion) under Article 172 of the Código Penal. The legal path must always be the judicial one.
• Changing the lock of the property: Entering the property or changing the lock without the consent of the occupant or without a judicial eviction authorization constitutes a crime of allanamiento de morada (trespass) or arbitrary realization of one's own right. You could end up being the one convicted.
• Accepting informal payments under the concept of "help": If the owner accepts bank transfers or cash with vague concepts such as "flat payment" or "rent", the precarista can argue before the judge that a verbal lease agreement existed, which would transform the process into an eviction for non-payment or, worse still, force the owner to respect the legal extensions of the LAU (up to 5 or 7 years).
• Not documenting the prior claim: Filing the eviction lawsuit directly without having previously sent the burofax demand can cause the defendant to accept the claim (allanarse) in court, and the owner could be ordered to pay the court costs for not having tried the prior extrajudicial route.

Frequently Asked Questions (FAQ)

Can a precarista become the owner of the flat over time?

In theory, the Código Civil contemplates usucapión (acquisition of ownership by the passage of time with uninterrupted possession). However, for this to occur in a precario situation, the possession must be in the capacity of owner, public, peaceful, and uninterrupted. Since the precario is based on the mere tolerance of the owner, the precarista possesses "at sufferance" and not "in the capacity of owner", so no matter how many years pass, they will not be able to acquire ownership of the property through this route.

What happens if the precarista claims social vulnerability after the Housing Act?

With the entry into force of the Ley 12/2023 por el derecho a la vivienda, if the defendant proves to be in a situation of economic and social vulnerability (and the plaintiff is considered a gran tenedor—large property holder—generally owning more than 10 properties, or 5 in stressed areas), the eviction procedure will be mandatorily suspended until the competent public administrations offer an alternative housing solution, for a maximum period of 2 months (if the plaintiff is a natural person) or 4 months (if it is a legal person).

Can I sell a property that is occupied by a precarista?

Yes, the law allows the sale of a property in a precario situation. However, the buyer must be fully aware of the situation, as they will acquire the property with the occupant inside and will have to be the one to start or continue the legal eviction actions for precario to recover actual possession of the estate. This usually translates into a notable reduction in the sale price of the property.

Who must pay the Property Tax (IBI) and renovations in a precario?

The owner of the property (the landlord/lender) is the taxpayer of the tax, so they must obligatorily pay the IBI (Impuesto sobre Bienes Inmuebles) and the ordinary and extraordinary community of owners' fees. The precarista only has the obligation to keep the property in a good state of conservation and answer for any deterioration caused by their fault or negligence.

In Summary

• The precario is the occupation of a property without a written or verbal contract and without paying any rent to the owner.
• It differs from comodato in that the latter has an agreed period or use, while in a precario the owner can claim the property back at any time.
• The payment of utility bills (electricity, water) by the occupant is not considered rent payment and does not alter the precario status.
• To recover the property, it is essential to first send a formal burofax granting a 30-day eviction period.
• If the occupant does not leave, a juicio verbal de desahucio por precario must be initiated with the mandatory assistance of a lawyer and a court agent.
• Never cut off utilities or change the lock, as the owner could commit serious crimes of coercion or trespass.

General legal information, not personalised legal advice. For your specific situation, ask your question for free at AbogadoAI — answers grounded in Spanish law (BOE), in English.

This is general information, not legal advice. Verify on the BOE or consult a lawyer for your specific case.