WHAT HAPPENS WHEN THE TENANT APPROPRIATES OR DAMAGES THE FURNITURE OF THE RENTED PROPERTY?
There is an additional problem that exists in the field of Real Estate Law in relation to the lease of real estate. It is common for conflicts to arise between landlords and tenants when it comes to the fulfillment of the obligations stipulated in the lease contract. In such cases, non-payment of installments or refusal to abandon the property is a common occurrence in this sector. However, after having concluded procedures such as rent claims or evictions, even including eviction as a measure of forced execution, the problems do not end there.
The behavior of some tenants, who do not accept the judicial decision that results in the obligation to leave what until then had been their habitual residence, either by means of a valid title or in precariousness, results in causing significant damage to the furniture attached to the property, either by trying to obtain economic gains or simply to cause economic damage to the owner.
MISAPPROPRIATION IS A CRIMINAL AND CIVIL OFFENSE
This is materialized in many occasions in a criminal offense called misappropriation of the furniture attached to the real estate. Although it does not operate only in the real estate sphere, it is present in the day to day of the conflictual relations between the parties. Sometimes, unaware that a crime is committed, but with ‘‘animus fraudandi”, this type of conduct is undertaken, without knowing the consequences at civil and criminal level that will have to be faced afterwards.
It is important to keep in mind a main idea in the field of misappropriation of movable property, before assessing its characters: there is a breach of trust that is born within the bond between the parties. It is an obligation ex lege and ex contractum, but it does not mean that it should not be fulfilled, binding the parties and intertwined with other legal concepts such as good faith or legal certainty.
HOW THE LANDLORD OR LESSOR IS PROTECTED AGAINST MISAPPROPRIATION
The lessor is protected from the injurious conducts produced voluntarily by the lessee through two ways that will be developed below: civil liability and criminal liability, which will have their raison d’être through what is set forth in articles 1901 and following of the Civil Code and in article 253 of the Criminal Code that, in a clear way, marks the requirements that must be met for the conduct to be typical.
CRIMINAL AND CIVIL LIABILITY: THE TWO PATHS TO BE CHOSEN BY THE LESSOR OR LANDLORD
As a result of what is set forth in article 253 of the Criminal Code, 4 main characteristics of the crime of misappropriation can be extracted:
- The cause of a real damage to a 3rd party.
- The previous acquisition by valid title of the possession of the property object of misappropriation
- The lack of transfer of ownership together with the title (i.e., obligation to return or restitute the goods whose possession is temporarily held).
- That it is money, effects, securities or any movable thing. In fact, for practical purposes, the owner’s priority is to mitigate the damages derived from the misappropriation.
WHAT DAMAGES DOES THE MISAPPROPRIATION GENERATE?
It is necessary to bear in mind that, many times, there is a triple damage:
1.- The non-receipt of the unpaid rents by the debtor,
2.- The impossibility of renting the apartment due to the denial of abandonment of the dwelling.
3.- The damages derived from the misappropriated goods.
This, together with the need to initiate complex procedures such as those already mentioned (eviction and/or rent claims) raises the question of how to deal with these situations.
WHAT ARE THE TWO WAYS OF CLAIMING
There are two ways that the law offers to the landlord.
1.-The first one, the exercise of the civil action, demanding civil responsibility to the lessee who caused the damages, without entering in penal matter.
2.-The second is the opening of criminal proceedings prior to the exercise of the civil action. Here two new paths are opened: the plaintiff can decide to exercise the criminal action only, reserving the civil action, or to exercise them jointly.
OPTIONS IN CIVIL AND CRIMINAL PROCEEDINGS
In reality, there are several options in both the criminal and the civil route:
In the CRIMINAL PATHWAY,
It is allowed to allege misappropriation, but there is also another type of crime that punishes this type of conduct: the crime of damage, included in art. 263 Penal Code (with the special type included in art.267 of the Penal Code, when there is a serious infringement and quantifiable damage in a value exceeding 80,000 euros).
When serious damage is caused or the owner is exposed to a delicate economic situation, the crime of damages will be produced (although it is already specified that this criminal type will operate when the case is not included in other criminal types, reinforcing the idea of the non bis in idem principle and eliminating the possibility of real competition for misappropriation and damages.
In the CIVIL LAW,
It is allowed:
1º.- The contractual civil liability derived from the breach of what is stipulated in the contract. The clauses that are generally included in the lease contract (although the Urban Lease Law also protects the parties) stipulate the duty of conservation of the furniture as one of the main obligations of the lessee.
2º.-But, in addition, it is possible to claim tort liability, regardless of the bond subtracted by the parties, for damages.
The owner must choose how thy wants to manage the conflict, since, on the one hand, the penal route, in case of being estimated, increases the possibilities of extending the responsibility to the civil route.
The other side of the coin is that the process will be more burdensome both temporarily and financially. The process will be lengthened in time and expenses such as the postulation, which is mandatory as a general rule (except for certain types of initial procedural steps), will increase.
CASE LAW AND MISAPPROPRIATION: THE CONSIDERATIONS OF THE COURTS
A first useful example to view a misappropriation within an eviction with release procedure is the one reflected in the content of the Suprme Court Ruling (Criminal Chamber, Section 1), number 797/2012 of October 16 (RJ 2012\10163). The appeal is dismissed, and the conviction of the defendant for misappropriation is maintained.
The opposite case occurs in the Supreme Court Decision (Criminal Chamber, 1st Section) number 824/2007 of September 21 (RJ 2007\7310). In this case, in an analogous case to the previous one, custody is granted to the father, and the wife must cede the use and enjoyment of the house within one month. This time, it is not necessary to launch, but the denounced party decides to pick up part of the furniture. In this case, the appeal is partially upheld, considering that there is no crime and maintaining civil liability.
There is a differentiating point that the Supreme Court exposes in the second judgment: there is no prior delivery by virtue of a relationship of trust or any title whatsoever. The concurrent requirements of the Criminal Code are not fulfilled and, therefore, misappropriation is not appreciated (although the rest of the contents of the condemnatory sentence are maintained).
With the comparison of the two sentences, it is clear how important it is, firstly, to check that the requirements of the criminal type of misappropriation are met and, secondly, how important it is to have documents with evidentiary effectiveness of any kind (which, in the second case, is not an inventory of goods created for a lease, but it is the reflection of what is stipulated in the matrimonial property regime subscribed by the parties).
If you need to know which cases can be considered misappropriations and the solutions to be taken, please contact us.