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The Crime of Misappropriation in the Context of Housing or Business Premises Rentals

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El delito de apropiación indebida en el ámbito de los arrendamientos de vivienda o local de negocio
The Crime of Misappropriation in the Context of Housing or Business Premises Rentals

Misappropriation in the context of housing or business premises rentals has become a recurrent question. This crime is committed when the tenant takes possession of goods that they held legitimately under a rental agreement, intending to incorporate them into their own estate without the landlord’s authorization. This conduct entails significant legal consequences.

Recent case law, particularly Judgment No. 953/2023 of the Supreme Court, has shed light on the distinction between misappropriation and similar crimes, such as theft, within the framework of rental contracts.

Consequences of Misappropriation in the Context of Rentals

Spanish legislation clearly penalizes misappropriation, typified in the Penal Code. The penalty imposed for this crime may vary depending on the amount misappropriated, potentially including prison sentences, fines, and even disqualification from exercising civic rights. In the context of rentals, the failure to return or misappropriation of movable property included in the rental agreement without the owner’s consent constitutes a clear example of this crime.

Distinction between Misappropriation and Theft in Rentals

One of the main clarifications provided by Judgment No. 953/2023 of the Supreme Court is the differentiation between misappropriation and theft. While theft involves unlawful possession from the outset, misappropriation in the context of a rental is characterized by the transformation of initially legitimate possession, under a contract, into disposal of the goods as if they were one’s own, without the corresponding authorization. This nuance is crucial for understanding the nature of the crime within landlord-tenant relationships and its legal implications.

Implications of the Supreme Court Judgment

The aforementioned Supreme Court judgment has set an important precedent by emphasizing that the misappropriation of movable property included in a rental contract, carried out by tenants, must be considered as misappropriation and not as theft. This distinction not only has implications in the classification of the crime but also in the strategy of the prosecution and the defense in criminal proceedings against tenants who do not return, upon termination of the contract – even the eviction itself – furniture and/or items included in the rental or leased as annexes to the house or premises.

Legal Strategies against Misappropriation in Rentals

To face cases of misappropriation at the termination of the tenancy relationship, it is essential to have a deep understanding of the applicable legislation and case law. The legal strategies of the prosecution should focus on demonstrating the existence of a rental contract, the inclusion of movable property or items in said contract that the tenant is obliged to return, and the tenant’s intent to incorporate them into their estate. The collection of evidence, such as the contract, an inventory of goods attached to the contract, and, where appropriate, communications between the parties, plays a crucial role in these cases.

Recommendations for Landlords and Tenants

To prevent situations of misappropriation, both landlords and tenants should take proactive measures. Landlords should ensure to include a detailed inventory of movable property in the rental agreement and conduct periodic inspections of the rented property. On the other hand, tenants should be aware of their contractual obligations and avoid any actions that could be interpreted as misappropriation of the goods included in the rental agreement that they must return upon its termination.


Misappropriation in the context of housing or business premises rentals represents a significant legal challenge in Spain. The recent case law of the Supreme Court has clarified important aspects about the nature of this crime and its distinction from theft, establishing clear guidelines for its prosecution and defense. Both landlords and tenants should be informed about their rights and obligations to avoid engaging in conduct that may be penalized under the framework of misappropriation. The proper understanding and application of the law is essential to protect property and ensure fair and equitable landlord-tenant relationships

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