Eviction due to precariousness

Therefore, the concept of eviction due to precariousness necessarily leads us to the concept of precariousness. That is, you have to know what precariousness is in order to be able to explain when eviction due to precariousness is applied.

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What is the precarious?

He precarious it's a legal concept not defined in the law and that has been developed by the jurisprudence.

Although its roots reach back to Roman law, it is currently used to designate whoever is in possession of an asset or right without relying on legitimate title to do so. In the case of eviction due to precariousness, possession would refer to a real estate.

But like any jurisprudential construction, it has not been free of conflict over time.

Restrictive concept

Article 250.1.2 of the Civil Procedure Law does not define what is precarious, but it does say when to use the precarious Verbal judgment of eviction due to precariousness, which is indirectly giving a definition of what precariousness is.

And it says that it must be used when the aim is to "recover full possession of a rural or urban property, transferred in precarious conditions,...". And it is the term "precarious ceded" and, even more so, the term "ceded" that generates discord.

1. The following demands will be decided in a verbal trial, regardless of their amount:

[…]

2. Those that seek the recovery of full possession of a rural or urban property, transferred in precarious conditions, by the owner, usufructuary or any other person with the right to possess said property.

Article 250.1.2 of the Civil Procedure Law

Thus, the term “assigned” used in said article is what has meant that on some occasions it has been considered that the precarious term It only refers to when someone voluntarily transfers a property to another person. (free of charge and for an indefinite period).

This restrictive conception rules out other situations as precarious, such as, for example, when the person using the property is a squatter who has accessed it without the owner's consent.

Broad concept

The broad concept It is the majority accepted by the courts.

According to this concept, whoever occupies a property will be in a precarious situation not only when the owner has transferred it to them, but also in other cases, such as when the occupant has accessed the property without the consent of the owner.

Concept of precarious

Given that the broad concept is the one mostly accepted by the courts, it can be concluded that You will be in a precarious situation when the following elements are present::

• Someone has accessed a property with or without consent of the person who has the right of possession over the property, and he doesn't want to give it back.
• The occupant is not paying any rent., that is, you use it for free or by paying certain small items (electricity, water, etc.), but not a rent.
• The occupant You are using the property for an indefinite period of time., either because this was agreed with the person who lent it to him when he allowed access, or because he has accessed it without the consent of the owner.

Therefore, there is precariousness when a person uses a property without legitimate title to do so, either because he had it and lost it, or because he never had it, and he does Indefinitely and without paying rent.

Some examples:

• A nephew moves to his uncles' city to begin his university studies and they allow him to live in an apartment they own without formalizing any contract.
• A squatter enters a home without the owner's permission.
• A inheritance has not been distributed but one of the heirs lives in the habitual residence of the deceased.
• A grandmother lends her home to her grandson so that he can live there with his wife and their daughter, and after the divorce The use of the home is granted to the granddaughter and daughter.

What is precarious eviction?

Eviction due to precariousness is the civil verbal process mentioned in article 250.1.2 of the Civil Procedure Law, which will be used to evict people who are in a precarious situation when they do not want to return possession of the property to the person who has the right to possess the property.

Therefore, eviction due to precariousness can be used against people to whom the property has been lent and also against squatters.

Without embargo, in 2018 a special process of express eviction to evict squatters so, Although precarious eviction can continue to be used to evict squatters, it does not make much sense to use it, since the new process is supposed to be faster than eviction due to precariousness.

When can the eviction action for precariousness be exercised?

The owner of property occupied on a precarious basis can recover it whenever he wishes..

However, to do this you must exercise eviction action due to precariousness, since the recovery by way of fact It is prohibited in our legal system.

The recovery for way of fact means that the owner expels the occupant by his own means. Such means are usually violence, intimidation or coercion. In the case of behaviors classified in the Penal Code, Acting in this way can lead the owner to be convicted of a crime.

Therefore, if the owner wants to recover his property, he will have to exercise the eviction action due to precariousness (or the new process against squatters if it is a squatting). Through the same You will have to prove to the judicial authority that you are the legitimate owner of the occupied property and ask them to expel the unwanted occupant.

The precarious person is in a situation of relative helplessness, because even if you have to go to court to evict him, You can only defend yourself by providing a title on which you base your right to remain on the property..

This is impossible by definition, since the fundamental characteristic of the precarious is the absence of said title..

How is eviction processed due to precariousness?

Before submitting a demand of eviction due to precariousness, it is necessary hire a lawyer. It would also be necessary to contact the occupants and demand the return of the property.

If they do not voluntarily leave the property, can be presented demand of eviction due to precariousness before the Courts of First Instance of the place where the home or land is located.

In court it will be enough to the owner proves that he is the true owner of the property. You must also present the request for return of the property to demonstrate that you have withdrawn our consent in case its occupation had been allowed.

The lawsuit will be resolved in Verbal judgment, which is a faster civil trial than the ordinary procedure. The court will determine the date for the hearing and will subsequently dictate judgment. If the defendant does not appeal within the next 20 business days must leave the home or land, since otherwise the launch will occur.

ANDEviction is the term used for the physical eviction of the property.. It is produced in the company of a judicial commission that records its state of conservation in a record, so that the owner can claim compensation if the property has suffered damage.

Considerations regarding evictions due to precariousness

A common defense against eviction claims due to precariousness consists of invoking article 439.1 of the Civil Procedure Law (LEC). This rule determines that lawsuits to recover possession filed after one year from the disturbance or dispossession are not admissible.

The article is not applicable to evictions due to precariousness, but only to demands for the guardianship summary of possession regulated in article 250.1.4º LEC (that is, the new process against squatters).

Consequently, it can be concluded that the only statute of limitations that could apply is regulated in articles 1959 and 1963 of the Civil Code, which In these cases it will be 30 years (usucapion extraordinary).

On the other hand, it must be remembered that the exercise of the action of eviction due to precariousness It does not require any subjective requirement other than the will to recover the occupied property..

Finally, it should be noted that the precarious situation could lead to criminal prosecution. Thus, the article 245 of the Penal Code classifies as squatting or home invasion unauthorized access to another's property, depending on whether or not violence occurs.