Loan for Use or Tenancy at Will: "Stay as Long as You Need" and Eviction from a Property Lent for Free (Spanish Supreme Court judgment 1273/2026 of 21 July)
Spanish Supreme Court judgment 1273/2026 of 21 July (appeal 7016/2025) settles one of the most common questions in property law: where an owner lets someone use a home for free "for as long as you need it", with no term and no consideration, the arrangement tends towards tenancy at will (precario) and the owner may recover the property at will (Article 1750 of the Civil Code). We examine the distinction between commodatum and precario, Articles 1740, 1741, 1749 and 1750, the doctrine of a loan that turns into tenancy at will, and how eviction claims are won or lost.
1. A favour between acquaintances, years later
Few situations generate as much litigation in Spanish property law as the free transfer of the use of a home. A relative in difficulty, a friend who has been evicted, a child leaving home, an empty flat the owner would rather keep occupied to deter squatting. The arrangement is agreed verbally, generously and without paperwork. Years later, when the owner needs the property, the question is always the same: can I get my home back?
Spanish Supreme Court (First Chamber) judgment 1273/2026 of 21 July (appeal 7016/2025), reported by Ms Nuria Auxiliadora Orellana Cano, answers that question clearly and brings order to an area where the Courts of Appeal had been ruling inconsistently: the distinction between commodatum (comodato, a loan for use) and precario (tenancy at will) and the consequences of letting someone stay "for as long as you need it".
At [Bufete Padilla](https://bufetepadillatorrevieja.com/en/contact) — Torrevieja, Elche and Moraira — we regularly handle these cases, both for resident owners and for foreign owners who lend their Costa Blanca second home to relatives or acquaintances. This analysis develops in full what the Supreme Court argues and relies upon.
2. The facts: the Sitges apartment
The facts, as established at first instance, are simple enough to serve as a textbook reference.
The owner of a home in Sitges (Barcelona) allowed another person, who had been evicted from the property where she lived with her parents, to use it. The arrangement was verbal and in these terms: she could stay as long as she wished, for as long as she needed it, paying nothing at all. The owner also had an interest in the apartment — which was empty — not remaining unoccupied.
Years later the owner became judicially assisted (first under guardianship and later with a representative assistant, following the reform introduced by Law 8/2021 on legal capacity), and the foundation assisting her filed an eviction claim based on precario, arguing that she needed the property to fund her care.
Procedural history
| Court | Decision | Reasoning |
|---|---|---|
| Court of First Instance no. 2, Vilanova i la Geltrú (judgment 59/2024) | Claim upheld | There was an agreement, but with no fixed term and no consideration: possession granted, tolerated and without title. This is precario |
| Barcelona Court of Appeal, Section 14 (judgment 310/2025) | Reversed, claim dismissed | Found a commodatum: the loan lasted "while the situation of need continued", which it treated as a specific use and a limited time |
| Supreme Court (judgment 1273/2026) | Reverses and confirms the eviction | A transfer with no term and no specific use allows the owner to recover the property at will |
One procedural detail matters: the defendant did not answer the claim and was declared in default, yet appeared on the day of the hearing and called her niece as a witness. That single witness statement drove the whole case.