This is not the first article I publish on the blog about criminal law applied to horizontal property and the rental of urban properties. If you are interested you can read:
- Here, The crime of breaking and entering in the rental of housing and in the communities of owners.
- And here Coactions and real estate mobbing.
- More about Coercions to the tenant.
The crime of misappropriation is envisaged and punishable by a minimum of 6 months in prison, and in some cases a fine, in article 253 of the Criminal Code. The conduct consists in having received effects, values, money or personal property in deposit, administration or by another legal title, with the obligation to give them a destination, keep them or return them, and not do it. The offender disposes of the thing as his own, with the intention of making a profit for himself or for a third party, or gives it a different destiny from the agreed one.
It is committed in any legal transaction that originates the delivery of the object without the transfer of their property, being obliged the recipient to deliver it to a third party or reintegrate it or return it to whoever it was removed. Among these legal transactions, the Supreme Court includes the contracts of bailment, lease of services (lawyers), mandate (administrator of farms) and leasing of things, including the rental of housing, local of business and industry.
In a community of owners the crime of misappropriation is committed by those who receive money from the community – usually the administrator and the president – and it distracts them. Distracting is giving the received a different destiny to the agreed one. It is the form of misappropriation called unfair management: money is managed and disposed of to the detriment of the principal. It is irrelevant the fate that the offender of money: pay own debts, those of another community, invest in the stock market. The fundamental thing is that the money is used for the attention of others for which it was received. I would like to emphasize that the person who manages the patrimony of the community responds to this and the owners, and that they have the right to be informed of the management of their money, contracts with suppliers, and so on.
In the office we took a case in which the president of the community, who also acted as administrator and secretary and had the sole and absolute control of the accounts of his community, played the money of all the co-owners in bingo halls and casinos. He was convicted of misappropriation and documentary falsification of prison and fine, to return to the community all money with interest, and to pay the procedural costs. It did not come cheap.
Difference with civil contractual breach
In the breach of contract there is no will to approve the delivered but only a delay or transitory impossibility of compliance with the obligation to return. In the crime of misappropriation, the offender voluntarily incorporates the thing into his estate. It must be borne in mind, in extreme or problematic cases, that criminal law applies to acts that are especially harmful to the legal rights that are protected.
For example, there is civil liability and no offense for the administrator if the administrator does not request the subsidies to install the lift on time and the community does not charge for them; the administrator responds for the damage. The president must return to the community the amount paid in checks for expenses not approved by the board of owners and the one that contracts lawyers without the approval of the board must pay their fees, but will not commit a crime.
It is also possible that the offender has the right to withhold money, claiming a credit against the person to whom it is to be delivered (credit compensation). This right is an exception to the prohibition of self-protection of the law itself, which is only admitted very restrictively. It would be the case of an administrator to whom the community owes its fees and is charged for the money paid for the fees.
Consult here with a lawyer specialized in urban leasing law and communities of owners
In the contract for the rental of real estate, housing or premises, the crime of misappropriation is committed by subtracting the movable assets rented as annexes to the property. In civil law, it is movable property that can be transported from one place to another. They are furniture that furnish those intended for the use and adornment of a property, such as appliances – refrigerator, washing machine, microwave, stove, kitchen utensils – and furniture: beds and mattresses, cabinets, tables and chairs, sofas, mirrors, carpets The kitchen cabinets, the doors of the rooms and the radiators of a heating system are movable: they can be dismantled and assembled in another house, or sold.
Because the tenant has the obligation to return the furniture to the landlord as received and the possibility that the furniture has disappeared when the lease ends, it is necessary that the furniture that they are rented they appear in an annex to the contract with photographs and a description of the same, and if it can be with the monetary value that they have based on the invoices of purchase. In this way, the claims against the tenant based on their disappearance or loss, will be based on a pre-existing valuation and accepted by the tenant. This firm knows from experience that the value that an expert appraiser will give the stolen furniture will be lower than the price paid for them.
Without this annex, the rental of the furniture is as if it did not exist: it can not be proved in a complaint that the property was rented with furniture, nor can its value be proven even if invoices are provided.