THE NON-RETURN OF THE APPLICATION OF A CONTRACT FOR THE RENTAL OF HOUSING MAY BE CONSIDERED AN INDEGUDED APPROPRIATION CRIME
With a certain frequency, cases are being given where, at the conclusion of the lease of a flat or a house, under different and not always demonstrable pretexts, the leasing party unilaterally decides not to return the rent on the tenant's part to the termination of the contract
In this regard, the jurisprudence has been pronounced on the unlawful withholding on the part of the landlord of the deposit provided by its tenant, in the sense that it considers that a conduct such as the one described can be a criminal offense, misappropriation
PURPOSE OF THE RESULT IN A HOUSE RENTAL CONTRACT
The guarantee provision, whether it is mandatory or voluntary, both provided for in the Urban Lease Law, is intended to guarantee and, as a result, ensure compliance with the contractual obligations assumed by the the tenant in front of the landlord.
However, this purpose of strengthening the fulfillment of the obligations in which the deposit is constituted can not be interpreted and applied arbitrarily by the beneficiary, the landlord.
In short, the breach that allows the lessor to apply the deposit and to carry out its guarantee function can never be the result of the unilateral analysis of the landlord, but must respond to a reality of the which is responsible for the tenant, such as defects and / or repairs, according to contractual forecasts, pending rents, supplies, etc. What he can not do is attribute other purposes or needs to the deposit. It should also be emphasized that when there are indeed grounds to withhold the deposit, there will be no repair budgets, but the actual imputation must be credited and the repair can be carried out, and this can only be proven by invoices.
NATURE OF THE RESIDENCE IN A HOUSE RENTAL CONTRACT
In addition, the deposit must be given the treatment that by its very nature recognizes the Civil Code in the figure of the deposit, that is, the amount delivered has been in the form of a deposit, which implies that the depositary - lender - You can not freely dispose of it or incorporate it into your assets, since you are obligated to keep it and refund it when applicable. At the moment when the landlord distracts the money deposited in guarantee and does not proceed to its restitution without cause for its withholding, it may be incurring in a crime of misappropriation.
He may even incur this, according to the Provincial Court of Navarre, when he enters it into his current current account which is subsequently seized: "it could not be ignorant that the money of the deposit, due to its fungibility, would be incorporated into the assets of the Society and therefore seized, for this reason, in order to comply with the obligation to return the money from the deposit, it had to adopt another formula and not the simple entry into an account that knew was seized or went to be it ".