First instance Court No 4 of Almeria has issued a judgment on the 2nd of march 2018 in the procedure Juicio Verbal de Precario nº 1666/2015 in which the claim that had been brought against an Spanish citizen with the intention of expelling him from the house where he was living is dismissed.
Our Spanish client, who had returned to Spain after several years living in the USA with his family, found that he had received a judicial claim from the mother of his ex-wife, whom he had divorced years before. Through this claim she pretended that he left the house where he was living since he came back to Spain alleging that she was the owner and that he was living there in “precario”, that is, with her consent but without paying anything.
Before continuing, we would like to explain that a “precario” trial is an eviction trial where it is asked that a person who is using a right only because the owner allows him abandons that property in favour of the owner. This procedure does not deal with actual property questions, but simply de facto questions. Consequently, if who is living in the property is unable to prove the possession with a title or right, in this type of trial he will obtain an eviction judgment.
The truth is that when this Sir came to our office, among the documents that he brought he had a Public Purchase Deed of that property which was signed by him and his ex-wife when they were married and there was also a Donation Deed which he had signed with her ex-wife in favour of her mother, both Polish.
When asking about this circumstance, our client could only tell that he had done what his ex-wife had told him and therefore they donate this property that they had acquire years before to her mother with the excuse that it was fiscally interesting for them.
Against this reality, in the claim there were no mention to this circumstance so our lawyers had to do an exhaustive investigation in order to prove that despite the Donation Deed the person who was living there since he came from the USA was our client and moreover he was the person who paid everything relating the house and who made repairing and took care of the house.
On the contrary, during several years the claimant had done nothing to claim the property, consenting therefore the possession of it by our client. All this was related to a fact that we consider crucial and it is that, as we alleged in the trial, it made no sense that a person who had invested all his savings in a property in Spain, being this his only asset in, made a donation. Therefore, this operation implied that there were something hidden and that in fact that donation could be simulated.
With this evidence, among other that were made, the Judge has agreed that there are enough evidences which indicate that it is not clear that the possession of the house by our client was due to the mercy of the owner. On the contrary, it seems to hide a complex legal situation which cannot be solved by this type of trial, since its application area is for those cases when there is no doubt that the person who is in the property has no title or contract and therefore has no right to possess it against the will of the owner.
As a result of this ruling, our client will continue to live in his home and what we have done through our lawyers and in his favor is to start another trial to annul the Deed of Donation on the grounds that the Deed was not real or explicitly wanted by our client but simulated; However, this is already another case and now what we celebrate is the obtaining by our client of a sentence so important for him and that avoids a situation of injustice.