The Fifth Section of the Provincial Court issued a ruling last September annulling the eviction of a couple from a house in Tahíche, whose use was granted to them by the owner. And, although said transfer was made through "an atypical contract" and in exchange for carrying out works on the house, some of which were "paralyzed" by the Teguise City Council, the court does not agree that the consideration has disappeared.
Specifically, as stated in the ruling, the transfer occurred in exchange for them carrying out conditioning works on it and building perimeter walls on the property. In this regard, the owner maintained that the repair work on the property had already been completed and that, with respect to the walls, the works could not continue to be carried out "due to problems with urban planning regulations of the Teguise City Council."
Therefore, he understood that the contract had lost validity and filed a lawsuit, before which the Court of First Instance number 1 of Arrecife agreed with him in a ruling dated February 9, 2018, in which it condemned the couple "to leave" the house "under warning of eviction" if they did not do so "within the legal term."
The defendants blamed the owner for the paralysis of the works
However, the couple appealed said ruling, first showing their disagreement with the fact that "the rehabilitation or repair works of the house" entrusted by the owner "have been completed." Furthermore, they blamed the paralysis of the works on the perimeter walls of the property "on the negligence or carelessness" of the owner, "who would not have requested the appropriate building permit", thus maintaining that they had stopped being carried out "for reasons beyond" their will.
In addition, the appellants stated that the testimony of witnesses, who claimed "to have witnessed conversations" between them and the owner of the house "setting the transfer of the use of the house for a period of ten years," had not been taken into account. And, although the owner presented a contract dated December 20, 2014, which "had the sole purpose of registering the defendants" in the house, the residents argued that there was "in reality an agreement to transfer the use" for "a specific period."
"There is a contractual link or atypical contract partly covered by the characteristic notes of the lease of works or the provision of services," states the Fifth Section of the Provincial Court, which considers that in the trial "it was proven" that "the legal link does not derive from the December 2014 contract called 'lease at will'." And, it points out that the owner's own lawyer acknowledged that "the defendants already resided in the house" previously.
Furthermore, the court states that it does not agree that "after the paralysis of the works due to urban planning regulations of the Teguise City Council, the consideration has disappeared, with the occupation of the defendants becoming free and therefore at will." "And this is because it is unsuitable and it is not possible to rule in this specific procedure on the possible termination of the existing contract between them, since the defendants do not agree with the termination of the contract in question, it must be ventilated in the corresponding declaratory judgment," it adds.
"The possible supervening loss of the object of the contract due to legal impossibility of fulfilling the provision or the possible breach of the contract by the plaintiff for not having requested the appropriate building permit and its legal consequences, since the fulfillment of the contract cannot be left to the discretion of only one of the contracting parties, are issues that cannot be resolved in the eviction trial for precariousness," the court concludes.
