The Second Section of the Provincial Court has annulled the sentence that had been imposed in the first instance on a resident of Playa Blanca for continuing to live in her house after losing the property for failing to pay the mortgage. And it is that although the Court considered her guilty of a crime of usurpation, the Court believes that the facts do not constitute such a crime, since the bank that obtained the property at auction did not take possession of it.
Specifically, according to the ruling, the woman bought the house in 2006 for 132,000 euros, but "in 2009, due to a series of work and personal circumstances, she stopped paying the mortgage, with Banco Santander claiming from her, at the beginning of 2010, as a result of the non-payment of the mortgage installments, the amount of 250,000 euros." And, as a result, "it is stated that the bank initiated a mortgage foreclosure, obtaining the property at auction," after which the woman continued "remaining in the property."
Therefore, the court of first instance sentenced this resident of Playa Blanca to a fine of 360 euros as the responsible author of a crime of usurpation. In addition, the woman was required to voluntarily vacate the property within 10 days or, failing that, it was indicated that the house would be evicted after this period. However, the affected party appealed the sentence, and now the Second Section of the Provincial Court has annulled the sentence against her, considering that "the described facts do not constitute the crime of usurpation subject to conviction."
The bank should have initiated her eviction
"The fact that the owner remains in possession of the property cannot determine that we are facing the crime of usurpation subject to conviction," the Court points out, noting that the court of first instance itself "does not consider it proven, as the complainant maintained, that in 2012 the bank obtained possession of the house and it was subsequently occupied, again, by its former owner, without any title, but what it affirms has been proven is that this possession, as owner, continued even when she lost ownership, and therefore affirms that she has continued to remain in the property."
Thus, the Court points out that, in this case, the bank should have initiated the eviction of the occupant of the house or "resort to a different civil procedure that could lead to the eviction" of the occupant, which it did not do, stating that "the crime of usurpation cannot have been committed" simply because the successful bidder did not take possession of the property. "The possession of someone who, in reality, has never had it cannot be disturbed, or it is not proven, which is what is of interest here, that they have held it," adds the court, which annuls the sentence imposed on the woman, in a ruling against which no appeal is possible.
