Foreclosure
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Protection of the mortgage debtor and action of eviction for precarious possession
The Supreme Court (SC) has resolved a case of eviction for precarious possession in which a company requested that the person occupying a home be evicted. The company claimed to be the owner and demanded that the occupant leave because they had no valid title to remain there.
The occupant defended himself by alleging that he was the former mortgage debtor and that the home had been awarded to Banco Santander in a foreclosure . According to his version, the company was linked to the bank itself (even stating that the bank was its sole partner) and that, therefore, a "precarious possession" should not be used, but everything should be resolved within the mortgage procedure , in addition to insinuating a possible "fraud" to avoid the protection of Law 1/2013.
The lawsuit was dismissed in the first instance and at the Provincial Court , they considered that, due to that connection with the bank and the existence of previous negotiations (such as emails about a possible purchase), the company could not act as a third party completely unrelated and, therefore, the precarious possession was not the appropriate route.
However, the Supreme Court upholds the appeal . It emphasizes that the company tried to intervene in the mortgage foreclosure to request the eviction, but the court denied it because that procedure had been archived years before, and that decision became final. In addition, the occupant had been living in the property for over 10 years without providing a title to justify staying there, nor did he prove during the precarious possession trial a situation of vulnerability protected by Law 1/2013. Taking all this into account, the Supreme Court concludes that eviction is appropriate due to precarious possession and orders the property to be vacated.
Our professionals can provide you with adequate advice on eviction procedures-
Elevator maintenance
Nullity of duration clauses and excessive notice in successive contracts This case deals with a typical contract for “preventive maintenance” of elevators, which are not fulfilled in a single day, but are provided month by month (what is called in law a successive contract). A maintenance company sued a community of owners because it decided to terminate the contract before the agreed term expired. The company claimed two things, on one hand, that unpaid invoices were paid; and, on the other, compensation for “breaking” the contract early. The conflict revolved around two clauses of the contract where one set a duration of 3 years and the other required a notice of 180 days (six months) in advance if one wanted to terminate the contract. The community argued that these conditions were abusive in the case of a consumer (in this case, the community itself). In the first instance, the court ruled in favor of the company, ordering the community to pay both the compensation for early termination and the outstanding invoices (in addition to interest and costs). However, on appeal, the Provincial Court of Málaga changed the criterion, declaring the 3-year duration clause and the 180-day notice clause null and abusive. What is the practical consequence? If those clauses are invalid, the company cannot rely on them to demand a penalty or compensation for having terminated the contract early. Nevertheless, the community must pay what it actually owed, the outstanding invoices for services already rendered. The Supreme Court confirmed this outcome, the duration and notice clauses are considered null, no compensation is due for ending the contract early, and only unpaid invoices are owed.
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Urban leases
Does a reversible work by the tenant give the owner the right to terminate the contract?
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Urban Leases
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