CRIME OF IT SWINDLES REAL ESTATE
The double real estate sale
The sale of other people's thing
The concealment of loads or obligations
The simulation of real estate contract
The Double real estate sale
He/she declares the article.251.1 of the Penal Code that it will be punished with the prison pain from one to four years the one that will alienate thing piece of furniture or property, again, before the definitive transmission to the buyer, in damage of this, or of a third.
The doctrine jurisprudencial affirms that the crime of double or multiple sale of thing property that prevé the article.251 of CP are a specific modality of the swindle, in which the deceit consists on the fiction of the property on a property that one no longer has, to have been transmitted the domain of the same one previously, and in the one that the unjust enrichment rests in the collection for copy of the price of the I am founded, to the buyer's coast second, harmed in the value of the bought thing and not received.
the figure of the double sale can fit in the núm. 1 of the article.251 of CP: alienation false mediating attribution of a disposition ability of which you lacks to already have her exercised in the buyer's damage or of a third; and also the second parenthesis of the núm. 2 of the same article: new alienation before the definitive transmission to the first buyer in damage of this or of a third.
And I eat it could not be otherwise, since it is about juridical criminalized businesses, the Code Civil prevé also this situation, with what the problems of distinction of the penal deceit and civil deceit stay, keeping in mind the subsidiary character of the penal right and in the principle of minimum intervention.
This way, according to the article.1473 of the Civil Code, if oneself thing has been sold different buyers, the property will be transferred the person that first have taken possession of her with good faith, if fuere piece of furniture. If fuere property, like in real estate topics it happens, the property will belong to the buyer that before has inscribed her in the Registration, although, when there is not inscription it will belong the property to the one who in good faith is first in the possession and lacking this, to who presents title of older date, always, it is insisted that there is good faith.
The Sale of Other People's Thing
A similar supposition to that of the double sale is that of the sale of other people's thing, the transmission of goods without ownership on the same ones.
This way, the article.251.1 of the Penal Code punish to who being attributed falsely on a thing piece of furniture or property, the disposition ability of which lacks, well for having never had it, well to already have her exercised, it alienated her, it burdened or it leased to other, in damage of this or of third.
It is regulated in this precept, assigning him/her a differentiated penalty, a specific figure of swindle to sanction a behavior that, in the cases in that the one harmed is the same person that acquires, it leases or in favor of which the obligation is constituted, it would fit in the forecasts of the generic swindle of not existing this article, and that, in those cases, it is characterized by a concrete modality of deceit, consistent in looking in front of the one harmed a disposition ability of which you lacks well on the piece of furniture or property that it is alienated, it burdens or it leases.
Concealment of obligations
A third modality of inappropriate swindle integrates it the disposition hiding obligations or constituting them later.
The article.251.2 of the Penal Code reproach the behavior of the one that dispusiere of a thing piece of furniture or property hiding the existence of any load on the same one and also of the one that blindfolds a thing like liberate and I will burden it, in the buyer's damage or of a third.
That is to say, of which sells goods properties, hiding the obligations that it has more than enough they exist, with knowledge of their existence and spirit of obtaining a benefit that produces an economic damage to the buyers.
It requires, as reiteradamente it is said by the doctrine:
to) That a juridical business of disposition of a good exists or of a thing anyone, expert this in its widest meaning.
b) That through the same one this object has been transferred as free of loads when on the same one it weighed a certain obligation.
c) That is taken to end the this transfer silencing that existence with the intention with knowledge of such an obligation that the transmission takes place, this is with the intention of obtaining a lucre.
d) That eat consequence of everything he/she takes place it a damage or patrimonial damage to the buyer or a third.
Lastly, the article.251.3 of CP punish the one that will grant in damage of other a feigned contract, expert as that in the one that there is a conscious divergence between the expressed will and the salesperson's intern and that it harms the buyer, to the one that evidently is deceived, being therefore the contract that is formalized a pure fiction fully to the service of the fraud, an empty business that contains a watching to the other people's patrimony.
It punishes of these crimes
As for the punishment of these behaviors, the swindle criminals will be punished with the pain of prison of six months to four years, if the quantity of that defrauded excediere of 400 €. For the fixation of the pain one will keep in mind the amount of that defrauded, the one smashes economic caused the one harmed, the relationships between this and the defrauder, the means used by this and how many other circumstances are good to value the graveness of the infraction.
Crimes made by artificial person or societies
In the real estate environment it is frequent that who appears as responsible for the deceit he/she is an artificial person, generally a mercantile society, acting as companies manufacturers or promoters.
Regarding the responsibility in strict sense, and according to the doctrine of the domain of the fact, so accepted at the moment and continued in multiple resolutions jurisprudenciales, they must respond penally as authors all those that in the organization and real operation and in fact of the entity they have a domain position in concrete relationship with the criminal fact that it is, in such a way that you/they will be able to be condemned who realizaren the criminal performance, those that participated at once concrete, and who, being directing of the company, knowing what was happening and having powers to impede it, they didn't make it, consenting this way in a criminal activity carried out in the breast of the society that you/they directed and that, hence, they had the ability and the duty of impeding.