A relative lives in your home rent-free and will not leave
Last updated 2026-09-28 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
You bring a claim for eviction of an occupier on sufferance (desahucio por precario), heard as a juicio verbal (the shorter form of civil proceedings) before the civil section of the Tribunal de Instancia (the first-instance court) for the place where the home is. There is no lapse period: the action lives for as long as the tolerance lasts. Since April 2025 you must first attempt a settlement, a condition for the claim to be admitted. The case turns on one question: whether the relative holds any title.
Six years ago your brother separated and you let him have the flat you inherited from your aunt while he got back on his feet. You signed nothing and never talked about money: he pays the electricity and the water, and you still pay the property tax, the service charge and the insurance. Now you need the flat for your daughter. You have told him so several times and he answers that he has lived there for years, that he is registered on the padrón (the municipal register of residents) and that nobody is throwing him out of his home. His partner has moved in with him. You do not want to break up the family, but you cannot keep waiting either, and you have been told that, since he came in with keys, he is not a squatter and the police can do nothing.
The case, in five lines
- What is brought
- A claim for eviction of an occupier on sufferance (article 250.1.2 of the Civil Procedure Act) to recover full possession of a home handed over without rent and without title, heard as a juicio verbal.
- Before which court
- The civil section of the Tribunal de Instancia (the first-instance court) for the judicial district where the home is located (article 52.1.7 of the Civil Procedure Act). Appeals are decided by the Audiencia Provincial (the provincial court of appeal).
- Deadline
- There is no lapse period: the action can be brought for as long as the tolerated occupation lasts, because acts done by mere tolerance do not count towards possession (article 1942 of the Civil Code). The clock only starts if the relative begins to possess publicly as owner: from that day the thirty years of article 1963 of the Civil Code run and, in parallel, extraordinary acquisitive prescription. Before filing comes the settlement attempt: if there is no reply within thirty calendar days, you have one year to file the claim.
- Who can bring it
- The claim is brought by the owner, the usufructuary or any other person entitled to possess the home; if it has several owners, any of them may sue for the benefit of all, provided the others do not object. It is directed against the relative and every adult living with him who has no title of their own.
- Financial risk
- If the court finds that the relative holds a title (a loan for use with an agreed purpose, a share in an estate, a right of use granted by a family court judgment, or a tenancy), the claim is dismissed with costs against you and, since the precario case is now a full trial, what is decided closes the debate. If you win, costs are awarded against the relative, but recovering them depends on his solvency.
Precario means tolerance, which is why the action does not lapse
Article 250.1.2 of the Civil Procedure Act sends to the juicio verbal, whatever the amount at stake, claims seeking to recover full possession of property held on sufferance, brought by the owner, the usufructuary or any other person entitled to possess it. An occupier on sufferance (precarista) is someone who enjoys a property without paying rent and without title, by the owner's mere tolerance. The son who was allowed to live in the flat, the brother going through a bad patch or the sister-in-law who stayed on in the house after being widowed all fit that description.
Tolerance has two consequences that work in your favour. First, it can be withdrawn at any moment: there is no need to plead a reason or a need, it is enough to say that it is over. Second, it creates no rights through the passage of time. Article 1942 of the Civil Code provides that acts of a possessory nature carried out under licence or by mere tolerance of the owner do not count towards possession. Ten years of consented occupation are worth no more than ten days when it comes to acquiring the house.
The only clock you should worry about is a different one. If the relative stops behaving as a guest and starts to possess publicly as owner (presenting himself as the owner, paying the property tax in his own name, carrying out works without asking, refusing you entry), the nature of his possession changes. From that moment extraordinary acquisitive prescription of thirty years may begin to run and, with it, the period that article 1963 of the Civil Code sets for real actions over immovable property. That is why you should react to the first act of that kind, and not let it pass to avoid an argument.
Loan for use or sufferance: what was said when you handed over the house
The relative's first defence is usually that he is not an occupier on sufferance but a borrower under a comodato, a gratuitous loan for use. Article 1740 of the Civil Code defines comodato as the loan of a non-fungible thing so that it may be used for a certain time and then returned, and declares it essentially gratuitous. The difference from precario is not the absence of payment, which both share, but the agreed use or term. And it is decisive: under article 1749, the lender may not reclaim the thing until the use for which it was lent has ended.
Article 1750 shuts that defence in most family cases. If neither the duration nor the specific use was agreed, and the use does not follow from local custom, the lender may reclaim the thing at will, and in case of doubt the burden of proof lies on the borrower. In other words, it is the relative who must prove that there was a term or a specific use. The Tribunal Supremo (the Supreme Court) has held that handing over a home for someone to live in, without more, is not a specific use but generic accommodation, and that is precario. It has applied this to the house that parents let a son have as the marital home and that the former spouse goes on occupying once the marriage breaks down.
That is why it matters so much what was said, and what was written, when you handed over the keys. “Stay while you get back on your feet” is revocable tolerance. “I will let you have the flat until you finish your degree” or “until we sell the house in the village” can be read as an agreed use or term, and then you would have to wait for it to be fulfilled. Even so, article 1749 itself allows the lender to reclaim earlier if he has an urgent need for the thing, and a real, documented need (a child who needs a home, an unavoidable sale, your own health) is a fallback argument that should be prepared from the outset.
When the relative does hold a title, precario is the wrong route
Precario only works against someone with no title at all, and there are family situations in which the occupier does have one. The most common is the brother who stays on in the house of deceased parents: until the estate is partitioned he is a co-heir, his share in the estate entitles him to use the home and most courts do not treat him as an occupier on sufferance. The route there is partition or the division of jointly owned property, where exclusive use is compensated, and it is the case we cover in our guide on court-ordered division of an estate.
The second is the former spouse to whom a divorce judgment granted the use of the home where the home belongs to the other spouse or to both: that use is a title, and it can only be ended by varying the measures before the family court, never through a precario claim. It is different where the house belongs to the other spouse's parents. The grant of use in the divorce does not bind an owner who was not a party, and as against that owner the former daughter-in-law or son-in-law is an occupier on sufferance, unless a loan for an agreed use is proved. The third is where the relative has been paying you a regular sum for living there: that may be rent, and with rent there is a tenancy, not precario.
You should also know that precario stopped being a summary proceeding with the Civil Procedure Act of 2000. Article 447.2 does not list it among the judgments that lack res judicata effect, and the courts treat it as a full trial: the relative may plead any title, however complex, and the judge must decide it without sending the parties off to separate proceedings. The consequence cuts both ways. You cannot be turned away with “this is too complex for a precario claim”, but if you lose, what was decided binds you afterwards. There is no second attempt with the same story.
Before filing: withdraw the tolerance and attempt a settlement
The law does not require a prior demand before bringing a precario claim, but in practice it is the piece that organises the whole case. A burofax (a certified letter with proof of delivery and certified content) records the date on which you withdrew your tolerance: from that day the relative no longer occupies with your consent but against your will, and any claim for his use of the home afterwards starts from a certain date. It also puts your version of the facts in writing, that the arrangement was free, without a term and a mere favour, before the relative builds his own.
That same letter serves to meet the admissibility requirement. Since 3 April 2025, article 5 of Organic Act 1/2025 requires, in civil matters, prior resort to an appropriate dispute resolution method, and eviction on sufferance is not among the excepted matters. The exception for summary protection of possession, which spares the owner from negotiating in the squatter case we cover in its own guide, does not reach you: your relative came in with your consent. A request to negotiate with a clearly defined subject (handing back the home on a specific date) is enough, and if there is no reply within thirty calendar days, the attempt is proved and you have one year to file.
Without that document the claim does not get past the door. Article 264.4 of the Civil Procedure Act requires it to be attached, article 399.3 requires the claim to describe how the negotiation went, and article 403.2 orders the court not to admit a claim that fails to prove it. The proposal should also be reasonable: a departure date with some margin, handover of the keys before witnesses and a record of the state of the home. Many families settle the conflict at this stage, and a well-drafted agreement, with a fixed date and agreed consequences if it is not honoured, saves months of litigation.
The claim: where, against whom, and the two statements that save it
The claim is filed with the civil section of the Tribunal de Instancia for the place where the home is located, because article 52.1.7 of the Civil Procedure Act assigns eviction cases to the court where the property lies, and that rule cannot be varied by agreement. It is directed against the relative and against every adult living with him without a title of their own, such as the partner who moved in later: leaving one out gives that person the chance to resist enforcement on the ground that nobody sued him. Your title is attached, normally the deed and an up-to-date land registry extract.
Since Act 12/2023, article 439.6 requires a precario claim to state whether the property is the habitual home of the person occupying it and whether the claimant is a large-scale housing owner (gran tenedor). If you state that you are not, you must attach a certificate from the Land Registry listing the properties in your name. This is a condition of admission, not a formality: a claim that omits those statements or that certificate is not admitted. It is a common failing in claims drafted in a hurry, and it costs weeks.
The additional requirement that the same Act imposed on large-scale owners (proving whether the occupier is vulnerable and going through a regional conciliation or mediation procedure) was struck down by the Tribunal Constitucional (the Constitutional Court) in early 2025 as a disproportionate burden on access to justice. Once the claim is admitted, the relative has ten days to answer in writing, and if either party so requests a hearing is held, which article 440 requires to take place within a maximum of one month of the summons. The case is decided there on the evidence described below.
Vulnerability, children and the eviction itself: what can delay the handover
If the home is the relative's habitual residence, article 441.5 requires him to be told, when the claim is admitted, that he may approach social services, and the court notifies the proceedings of its own motion to the competent authorities so that they can assess whether the household is vulnerable. If they confirm it, article 441.6 allows the court to stay the proceedings, by reasoned order, so that the proposed measures can be adopted, for a maximum of two months if the claimant is an individual and four if it is a legal entity. Once that period expires, the stay lifts automatically and the case continues.
What almost nobody explains is that this decision is a balancing exercise, not an automatic outcome. Article 441.7 requires the court to weigh the claimant's own vulnerability too and any other proven circumstance, so retired parents who need to sell or let the home to live must bring that situation, documented, into the case. The presence of children does not create a title against the owner: it triggers protection by the public authorities, but the Tribunal Supremo has held that protecting the child cannot become an expropriation of the owner. Separate from all this was the extraordinary suspension of evictions for vulnerable households, aimed at large-scale owners: it lapsed in February 2026, when Congress refused to validate its last extension, and on the day the claim is filed we check that no new one has been approved.
With a favourable judgment, the eviction is set for a specific day and time. If the property is the habitual home of the losing party, article 704.1 of the procedural Act provides, at the enforcement stage, one month to vacate, extendable by another month where there is good reason, after which the eviction goes ahead at once. If the relative appeals, the Audiencia Provincial reviews the case, but the appeal does not prevent you from seeking provisional enforcement of the judgment. On the day of the eviction you should attend with a locksmith and have the state of the home, and whatever is left inside, recorded.
How we run the case, step by step
- 1
Check who owns the home and what title the relative might plead
We obtain the land registry extract and review the deed, the estate if there was one and any family court judgment affecting the home. Before making a move we must rule out that the occupier is a co-heir, a co-owner or the holder of a court-granted right of use, because in those cases precario fails and a different route applies.
- 2
Pin down the facts without making them worse
We gather the messages from when the house was handed over, the bills you pay and the bank statements showing you never received rent. From that point no regular payments are accepted from the relative, the lock is not changed and the utilities are not cut off: any of those things turns the case against you.
- 3
Burofax revoking the arrangement and requesting negotiation
We send a burofax with proof of delivery and certified content that revokes the arrangement, sets a reasonable departure date and formally opens negotiation on a defined subject. That letter meets the requirement of article 5 of Organic Act 1/2025 and marks the date from which the occupation is against your will.
- 4
Negotiate the departure or let the thirty days run
If the relative replies, we negotiate the date, the handover of keys and the state of the home, and get it signed with clear consequences if it is not honoured. If there is no reply within thirty calendar days, the attempt is proved and we prepare the claim within the following year.
- 5
Claim for eviction on sufferance
We file the claim with the civil section of the Tribunal de Instancia where the home is, against the relative and the other adults in occupation, attaching the title, the negotiation document, the statements on habitual home and large-scale owner status and the land registry certificate of properties required by article 439.6.
- 6
Hearing, judgment and eviction
At the hearing we establish the absence of title and of rent against the relative's version, and we document your own need if vulnerability is raised. Once judgment is given, we seek enforcement, attend the eviction with a locksmith and have the state in which the home is recovered recorded.
The evidence that decides the case
- The up-to-date land registry extract and the deed or inheritance title: they prove your right to possess and, at the same time, rule out that the relative appears as a co-owner.
- The messages, emails or letters from the time you let him have the house (“stay while you find somewhere”): they prove a generic, revocable arrangement and dismantle the loan with a fixed term that the relative will try to plead.
- Your bank statements for recent years: the absence of any regular payment from the relative is what distinguishes precario from a tenancy. If he paid for electricity and water, it is shown that this was his own consumption, not rent.
- The property tax, service charge and insurance receipts in your name: they show that you always acted as owner and cut off any claim that he possessed as owner.
- The burofax with proof of delivery and certified content, and the relative's reply or silence: they fix the date on which the tolerance ended and prove the settlement attempt the law requires.
- Evidence of your own need (a child who needs a home, a sale already committed, your own financial or health situation): it carries weight if the relative pleads a loan for use and if the court has to weigh a stay on grounds of vulnerability.
What closes the door
- Changing the lock while the relative is out, removing his belongings or cutting off his utilities. It is taking the law into your own hands, it may be a criminal offence and it turns you into the accused in a dispute you had already won.
- Starting to charge him a monthly sum “to help with the bills” in the hope that it will nudge him out. A regular payment for living there can be read as rent: a tenancy is born, with the minimum duration that the Urban Leases Act guarantees to tenants.
- Signing, to calm things down, a note along the lines of “you can stay until the school year ends” or “until we sell”. It turns precario into a loan for use with a term, and until that term or use ends only an urgent need will allow you to reclaim the house.
- Reporting him for unlawful occupation or using the fast civil route against squatters. Both assume that the occupier entered without your consent; with a relative to whom you gave the keys, the usual outcome is that the case is shelved or not admitted, and months are lost.
- Bringing a precario claim against a brother who is a co-heir, or against a former spouse granted use of a home that belongs to the other spouse. They hold a title, the claim is dismissed with costs and, since the judgment has res judicata effect, there is no second attempt on the same facts.
- Filing the claim without the prior negotiation document, without the statements on habitual home and large-scale owner status, or without the land registry certificate of properties. It is not admitted, and the clock goes back to zero while the relative stays inside.
The law that applies
- Art. 250.1.2.º LEC. Sends to the juicio verbal, whatever the amount, claims seeking recovery of full possession of rural or urban property held on sufferance, brought by the owner, the usufructuary or any other person entitled to possess it. BOE-A-2000-323
- Art. 52.1.7.º LEC. In cases on leases of immovable property and in eviction cases, gives jurisdiction to the court of the place where the property is located. BOE-A-2000-323
- Art. 439.6 LEC. In claims to recover possession under paragraphs 1, 2, 4 and 7 of article 250.1, bars admission of a claim that does not state whether the property is the occupier's habitual home and whether the claimant is a large-scale owner; a claimant who states it is not must attach a Land Registry certificate listing its properties. Its letter (c) was struck down by the Constitutional Court. BOE-A-2000-323
- Art. 441.5 y 441.6 LEC. If the property is the defendant's habitual home, he is told that he may approach social services and the proceedings are notified to the competent authorities; once vulnerability is confirmed, the court may stay the proceedings by reasoned order for up to two months if the claimant is an individual or four if it is a legal entity. BOE-A-2000-323
- Art. 1749 CC. The lender may not reclaim the thing lent until the use for which it was lent has ended, unless he has an urgent need for it beforehand. BOE-A-1889-4763
- Art. 1750 CC. If neither the duration of the loan nor the use of the thing lent was agreed, and the use does not follow from local custom, the lender may reclaim it at will; in case of doubt, the burden of proof lies on the borrower. BOE-A-1889-4763
- Art. 1942 CC. Acts of a possessory nature carried out under licence or by mere tolerance of the owner do not count towards possession. BOE-A-1889-4763
- Art. 5 LO 1/2025. Makes prior resort to an appropriate dispute resolution method, which direct negotiation also satisfies, a condition of admissibility in civil matters, and lists the excepted matters: summary protection of possession is among them, but eviction on sufferance is not. BOE-A-2025-76
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
I have let him live there for years. Is it too late to get him out?
No. Eviction on sufferance has no lapse period and tolerance creates no rights: article 1942 of the Civil Code provides that possessory acts carried out by mere tolerance of the owner do not count towards possession. What you must watch is that the relative does not start behaving publicly as the owner, because from that moment acquisitive prescription could begin to run. At the first sign of it, withdraw your tolerance in writing.
My son divorced and the judge gave the use of our flat to his ex-wife and the grandchildren. Can we get it back?
If the flat is yours and not your son's, in principle yes. The Tribunal Supremo has held that a home handed over free of charge and without a term to a son as the family home is held on sufferance, and that the grant of use in the divorce creates no right against an owner who was not a party to it. The exception is where the former daughter-in-law proves that a specific, lasting use was agreed. The grandchildren do not prevent the claim, although they may trigger the vulnerability assessment and delay the handover.
He says I gave him the house by word of mouth. Does that entitle him to stay?
No. Article 633 of the Civil Code requires a public deed for a gift of immovable property to be valid, so a gift by word of mouth does not transfer ownership. Since precario is now a full trial, the relative may plead it and the judge will examine it, but without a deed that defence fails. What can carry weight is any message or document of yours that mentions a term or a specific use, which is why we review them before filing.
He is registered as resident at my home and pays the electricity. Does that make him a tenant?
Not on its own. The padrón is an administrative register of residence and gives no right over the home. Paying for the utilities he himself consumes is not paying rent either: precario is defined by enjoying the house with nothing given in return to the owner. It is different if he has been handing you a fixed sum every month for living there, because that may be construed as rent and open the tenancy route, with very different rules.
How long does it take to get the house back if children live in it?
It depends on the court's workload and on whether the relative opposes, but three stages must be added up: the thirty calendar days of the prior negotiation, the lawsuit and enforcement. If the home is the relative's habitual residence and social services confirm vulnerability, the court may stay the proceedings for up to two months where the claimant is an individual, weighing your situation as well. Children do not prevent the eviction, but they mean it has to be prepared with more care.
This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.