The Comodato and Precario in Spain: When a Free Occupant Has No Tenancy Protection (2026)

When an owner in Spain lets a family member, friend or former employee live in a property for free, the arrangement is either a comodato or a precario, and the difference decides how, and how quickly, the owner can get the property back. The comodato is the gratuitous loan of a non-fungible thing, regulated in articles 1740 to 1752 of the Codigo Civil. The precario is an unregulated situation of tolerated occupation without a possessory title, defined not by statute but by the doctrina of the Tribunal Supremo. The dividing line is the existence of a determined use or duration: when that is absent, or has ended, the occupant is a precarista and the owner can reclaim the property at will. This guide explains how each figure works, how the Supreme Court has drawn the frontier between them, and the procedural route a non-resident owner follows to recover a property held by a tolerated free occupant.

What is the comodato under the Codigo Civil?

The comodato is a gratuitous loan of a non-fungible thing, governed by articles 1740 to 1752 of the Codigo Civil. Article 1740 defines it: one party delivers to the other a non-fungible thing so the recipient can use it for a certain time and then return it, and the contract is “esencialmente gratuito”. The comodante keeps ownership of the thing and the comodatario acquires only the use, never the fruits (article 1741). A dwelling is the classic non-fungible thing: you must return that specific house, not an equivalent one. The comodato is a real contract, perfected by delivery of the thing, and it is free by its very nature.

The gratuitous element is the defining feature and the one that most often destroys the comodato in practice. Article 1741 states plainly that “si interviene algun emolumento que haya de pagar el que adquiere el uso, la convencion deja de ser comodato”. If the occupant pays anything at all, a monthly amount, a contribution to the community fees, or even an in-kind service, the arrangement is no longer a comodato. It becomes either a lease (and enters the LAU regime) or an atypical contract, but not the gratuitous loan the Civil Code regulates. This is the threshold question an owner must answer before choosing the recovery route.

The obligations are straightforward. The comodatario pays the ordinary expenses of use and conservation (article 1743), is liable if the thing is lost through use different from that agreed or held beyond the term (article 1744), and cannot retain the thing for debts the comodante may owe (article 1747). The obligations pass to the heirs of both parties, unless the loan was made in contemplation of the specific comodatario, in which case the comodatario’s heirs lose the right to continue using the thing (article 1742). The comodante can reclaim the thing once the agreed use ends, or earlier if there is “urgente necesidad” (article 1749).

What is the precario and who is a precarista?

The precario is not regulated by the Codigo Civil under that name. It is a factual situation of tolerated occupation, defined entirely by the doctrina of the Sala Primera del Tribunal Supremo. The leading formulation is in STS 691/2020 of 21 December and STS 502/2021 of 7 July, both cited and restated in the September 2022 ruling (Recurso 3087/2020): the precario covers every case in which a person, without paying rent, uses the possession of a property without a title, or with a title that is ineffective against a better right held by the claimant. Three situations fall within it: tolerance without any title; a change of cause, where a previously valid contract has ended; and even gratuitous possession without title and without the owner’s will.

The precarista is therefore an occupant who holds the property by the owner’s grace, without a legal cause that binds the owner to tolerate the occupation. The owner’s consent can be revoked at any moment, because the initial concession does not convert the possession into a permanent right or leave it to the occupant’s discretion. The dueño, the usufructuary, or anyone with a right to possess can reclaim the property whenever they choose. The precario is the residual category of free occupation that the comodato does not cover, and the Tribunal Supremo treats article 1750 of the Codigo Civil as the bridge between the two: when no duration or use was fixed, and custom does not determine one, the comodante can reclaim the thing “a su voluntad”.

When does a comodato become a precario?

This is the question that decides most real disputes, and the Tribunal Supremo has a settled line of authority on it. The doctrina, restated in STS 1860/2025 of 16 December 2025, is that even when a comodato exists and a specific use is authorised, the situation converts into precario when it prolongs indefinitely or is left to the unilateral will of the occupant. The reasoning rests on the temporal nature of the comodato. A cession that can perpetuate itself without temporal limit, at the sole will of the recipient, “desnaturaliza” the very concept of the comodato in article 1740 and violates article 1256 of the Codigo Civil, which forbids leaving the fulfilment of contracts to the arbitrium of one party.

The practical conversion paths are three. First, when the agreed use ends: the daughter finishes her studies, the employee leaves the job, the fixed term expires. From that moment the occupant has no title and becomes a precarista. Second, when no duration or specific use was ever set: article 1750 applies directly and the comodante can reclaim at will, with the burden of proof on the comodatario under the same article. Third, when the “use” agreed is itself open-ended and dependent on the occupant’s own decision to continue, as in STS 1860/2025 where a bar-cafeteria cession “hasta que dure el ejercicio de la actividad” was held to be precario because the occupant alone decided whether the activity continued. In each case the result is the same: the owner may reclaim the property and the route is the desahucio por precario.

How do you recover a property held in precario?

The recovery of a precario holding runs through the juicio verbal of article 250.1.2 of the Ley de Enjuiciamiento Civil. The article provides that the juicio verbal decides, regardless of amount, demands that seek the recovery of full possession of a rural or urban property ceded in precario, brought by the owner, the usufructuary, or anyone with a right to possess that property. The three requirements, restated by the Tribunal Supremo in STS 691/2020, are: the title held by the claimant, the identification of the property held in precario, and the insufficiency or absence of the defendant’s title. The claimant proves their title (usually the land registry escritura); the defendant bears the burden of proving a valid possessory title or the payment of rent, because these are positive facts against the eviction claim.

A point that separates the precario route from other possessory actions is its plenary character. The LEC removed the summary nature of the desahucio por precario: the judgement produces full cosa juzgada, because the action is not listed among the summary proceedings of article 447.2 LEC. The Tribunal Supremo confirmed this in STS 691/2020 and the September 2022 ruling, holding that the procedure can adjudicate the legal relationships invoked to justify the possession whose recovery is sought, without the evidentiary limits of a summary action. This is why the precario route is often preferred over the interdicto of article 250.1.4, which is the summary possessory tutela for an occupation that never had the owner’s tolerance (the okupacion scenario, not the precario one).

The practical steps for a non-resident owner are direct. Instruct a Spanish lawyer to file the demanda, attach the land registry certification, and identify the occupant. If the occupant raises a comodato defence, they must prove the agreed use or duration; if they cannot, article 1750 resolves the doubt against them. The judgement, if granted, orders the lanzamiento (the physical handover), typically within a short period set by the court. This is a civil route, distinct from the tenant eviction process used for non-paying tenants under the LAU.

How does the comodato differ from a tenancy under the LAU?

The comodato is not a lease and sits entirely outside the Ley de Arrendamientos Urbanos. The comodatario has none of the protections the LAU gives a tenant: no mandatory extension periods, no deposit regime, no right to remain beyond the agreed use. The LAU governs contracts where rent is paid; the comodato, by article 1741, ceases to exist the moment any payment is required. This is why a property owner who charges a nominal sum to a relative is, legally, creating a tenancy rather than a comodato, with all the LAU’s duration and eviction rules attached.

Criterion	Comodato (arts 1740-1752 CC)	Precario (STS doctrina)	Arrendamiento (LAU)	Okupacion (CP)
Title	Yes, the loan contract	None, tolerated occupation	Yes, the lease	None, occupation without consent
Consideration	None, free by essence	None, free	Rent (money)	None, but without owner’s will
Duration	Determined use or time	None, revocable at will	LAU extension rules	N/A, criminal removal
Protection	Codigo Civil only	None beyond possession	LAU duration + deposit	None, criminal route
Eviction route	Contractual claim or precario if converted	Juicio verbal, art 250.1.2 LEC	LAU express eviction	Criminal fast-track (LO 1/2025)

The Spanish tenancy law applies only where rent is paid, and the line is bright: pay one euro and you are inside the LAU; pay nothing and you are in the comodato or the precario. Owners who want to keep a relative’s occupancy outside the LAU must keep it genuinely free and document the use, otherwise the arrangement drifts into either a tenancy (if payment appears) or a precario (if no use is defined), and each carries a different recovery route.

Can a comodatario rent the property out to a third party?

No, and this is one of the clearest points the Codigo Civil and the Tribunal Supremo settle. Article 1741 provides that the comodatario acquires the use but not the fruits. Rent is a civil fruit, and the right to collect rent belongs to the owner of the thing, not to a mere borrower. STS 1860/2025 of 16 December 2025 addressed this directly: a comodatario who sublet the ceded local without express written authorisation from the comodante acted beyond the scope of the comodato, and the sublease was ineffective against the comodante’s right to recover. The Tribunal reasoned that while a usufructuary, who holds a real right of use and enjoyment, can lease the thing under articles 467, 473 and 480 of the Codigo Civil, the comodatario holds no such right and cannot create a tenancy that binds the owner.

The practical consequence for an owner is significant. If a family member holding under a comodato tries to let the property to a third party, that third party has no protection against the owner. The owner can recover the property directly from the third party through the precario route, because the third party’s title derives from a comodatario who had no power to grant it. This is the derivative-title principle the Tribunal Supremo applied in STS 1860/2025: the arrendatario’s title is derivative of the arrendador’s, and when the arrendador (the comodatario) had no power to lease, the chain collapses.

What should a non-resident owner document from the start?

The single greatest source of dispute is an undocumented free occupancy. A non-resident owner who lets a relative use a Spanish property without a written record of the use or duration creates exactly the situation article 1750 governs, where the comodante can reclaim at will but the occupant will contest the reclaiming and the matter ends in court. The protective step is a written comodato that states the purpose of the loan and, ideally, a defined duration or a clear trigger for its end (the end of studies, the end of a work assignment, a specific date). This converts the arrangement into a titled comodato and makes any later dispute about the existence of the loan moot.

A second step is to keep the arrangement demonstrably free. If the occupant pays anything toward the property, the comodato is gone and the relationship is either a lease or an atypical paid contract, each with different consequences. Owners who want a relative to contribute to costs should separate the comodato (free use of the dwelling) from the expense-sharing arrangement (utilities, community fees handled separately and transparently), so the occupancy itself remains gratuitous. The property servitudes and joint ownership rules interact with the comodato when the property is co-owned or subject to rights of way, and a written comodato helps clarify the boundaries of each right.

Finally, the owner should keep a current land registry certification accessible. The certification is the document the precario action relies on to prove title, and the Tribunal Supremo’s doctrina places the burden of proving a valid possessory title on the occupant. An owner with a clean registry entry and no written payment record from the occupant is in the strongest position to recover the property quickly through the juicio verbal, without the delays and evidentiary uncertainty that an undocumented, partially-paid arrangement produces.

This guide is general information, not legal or tax advice. Rules change and individual circumstances differ. Verify current requirements with an independent lawyer (abogado) or tax advisor (gestor/asesor fiscal) before acting.