What is precariousness? And how does it differ from a commodatum?

What is precariousness? And how does it differ from a commodatum?

Legal figures in the field of real estate

Redacción CIM Tax & Legal

Before we discuss the difference between "precario" and "comodato" in the real estate context, it is essential to first understand the meaning of these two legal concepts that may cause confusion and whose differences are minimal.

Given the similarity between both situations, it is important to closely examine the specific circumstances, as it will depend on these details whether we are dealing with "precario" or "comodato."

Property or Premises Loaned in "Precario"

The situation of "precario" lacks specific regulatory provisions. However, both legal doctrine and jurisprudence define it as a situation where a third party (precarista) occupies someone else's property without having a valid title to do so, either because they lack it or because the title has ceased to be valid, without paying any rent or fee.

Additionally, the loan is made without establishing a specific duration or specifying the particular use. This situation often occurs when the owner provides a property to a child, friend, etc. It also occurs when the occupant is a stranger to the owner, living rent-free and without a contract for various reasons, or has an expired title that has lost its effectiveness.

Property or Premises Loaned in "Comodato"

"Comodato" is a loan agreement regulated by articles 1741 and following of the Civil Code. It occurs when the owner, usufructuary, or any other person with the right to possess real estate, provides another person with the property, establishing a specific duration or use without receiving rent in exchange for the use. The Supreme Court defines it as "a usage contract by which one party delivers a thing to the other for its use, for a certain time, or for a specific purpose." There are two parties, the grantor (comodante) and the borrower (comodatario), with obligations only arising for the borrower, who must preserve and use the property and return it when the agreed-upon period expires or the designated use concludes, except in urgent cases as per Article 1749 of the Civil Code.

A common scenario is when parents provide a property to their child for free for the duration of their university studies.

Differences between "Precario" and "Comodato."

  1. Usage: In "precario," the property is not provided for a specific use; it is an act of the owner's tolerance. In "comodato," on the other hand, it must be provided for a specific reason and use.
  2. Duration: In "precario," we do not know when the loan situation of the property ends; it has been given to the occupant without establishing a specific or at least determinable duration. In "comodato," we know when the loan will end because the parties have set a specific or at least determinable duration.
  3. Time to Claim: In "precario," the return of the property can be claimed at any time, while in "comodato," the grantor cannot claim the return of the property from the borrower before the expiration of the agreed-upon period or the conclusion of the designated use. An exception exists, as indicated in Article 1749 of the Civil Code, when there is an urgent need for the property.
  4. Legal Procedure: The legal procedure to reclaim the property, in the case of "precario," will be a verbal eviction trial, while in "comodato," the appropriate procedure will be an ordinary trial. However, if it is not a complex matter, some recent judgments suggest that it could be regulated by a verbal trial.

In conclusion, in "precario," there is no specified duration or use, whereas in "comodato," the thing is provided for a specified period or for a specific purpose.

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