Rental bonds and judicial deposits

Refusal to Return Deposits in Marbella

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Refusal to return legally required deposits

Certain deposits are not created and returned merely at the parties' will, but are instead imposed and regulated by a specific legal rule: the urban lease bond under Law 29/1994 and the deposits or bonds lodged before a judicial body are the two examples of greatest practical relevance. At RAKH ABOGADOS we precisely analyze, in each case, whether the refusal to return these deposits amounts to a simple civil dispute — the vast majority of cases — or whether, on the contrary, the additional elements case law requires to move into the criminal sphere are present.

The rental bond: an "irregular pledge" of essentially civil nature

Article 36 of the Urban Leases Act requires the tenant to lodge a statutory bond — one month's rent for a dwelling lease, two months' for a lease for any other use — which the landlord must return once the contract ends, unless it must be applied to cover damage, outstanding utility bills, or unpaid rent. Civil case law classifies this bond as an "irregular pledge" securing the full set of the tenant's obligations, and reiterates that a mere delay or a disagreement over its return — typically centered on whether damage attributable to the tenant exists and whether it has been duly proven — constitutes, in the vast majority of cases, a contractual dispute to be resolved through the civil courts, by means of the corresponding claim for payment and, where applicable, the accrual of statutory interest once one month has elapsed from the handover of the keys.

Calculator: accrual of statutory interest on the bond

Based on the time limit cited above: one month from the handover of the keys before statutory default interest starts to accrue.

Date the keys were handed over

When the criminal route is actually appropriate: the boundary with misappropriation

The criminal classification of the withholding of a rental bond requires something more than mere non-payment or delay: it requires proving the elements of misappropriation under Article 253 of the Criminal Code — a title that generates an obligation to return the item, and an act of disposal carried out with a definitive intention not to return it, without any justification or intention of settling the outstanding accounts. Lower-court case law consistently requires, in order to make this leap, that the landlord's refusal lack any justifiable grounds whatsoever — a total absence of any claim of damage or debts owed, or the assertion of manifestly fabricated or unproven reasons — and that it persist despite the tenant's formal demands. Where, by contrast, the landlord raises a reasonable dispute over the condition of the property or over amounts owed, even if that dispute is ultimately found unfounded in a later civil trial, case law tends to exclude the criminal route as a matter of account settlement falling outside the scope of criminal reproach.

Bonds and judicial deposits: the case of the deposit for provisional release

A case of particular relevance, and one with a much clearer criminal classification than the rental bond, is that of sums handed over to a professional for lodging as a judicial deposit — typically, a bond intended to secure the provisional release of a person under investigation — where that professional, after being judicially ordered to return it, fails to restore it to whoever handed it over. Case law has upheld convictions for misappropriation in cases of this nature, clarifying that the lawyer who receives funds belonging to another with the unequivocal purpose of lodging a judicial bond acts as a mere depositary or manager of a third party's funds, and that the subsequent judicial order for its return does not change the money's status as belonging to another, nor permit its appropriation once the proceedings for which it was deposited have concluded. The clarity of the title under which the funds were received — a bond for a specific, documented judicial purpose — and the existence of a final judicial decision ordering its restitution make this case far more favorable ground for criminal action than the rental bond, which is subject to greater room for disagreement over its application.

The administrative registration of the bond: its evidentiary value

In numerous autonomous communities, the Urban Leases Act and regional housing regulations require the landlord to deposit the bond received with the competent public body, an obligation of an administrative nature whose breach does not, by itself, alter the civil or criminal classification of a subsequent refusal to return it to the tenant, but which constitutes first-rate evidence: it documents the existence, the exact amount, and the date the deposit was constituted, matters that are sometimes disputed where no such formal registration took place. We verify in every case whether this administrative obligation was fulfilled, given the evidentiary value it provides both to the landlord's defense and to the tenant's claim.

Our strategy

For the accused landlord: we establish the existence of a reasonable and documented dispute over damage or amounts owed, steering the conflict toward the civil courts and excluding criminal liability.
For the aggrieved tenant: where the refusal lacks any proven basis and persists despite formal demands, we pursue both the expedited civil claim and, where circumstances justify it, the criminal route.
Defense in judicial deposits: in cases of judicial bonds not returned by the professional who managed them, we establish the specific purpose of the funds and the existence of the judicial order for their return as central elements of the prosecution or the defense.
Coordination of deadlines: we manage the one-month period under Article 36.4 of the Urban Leases Act and the other applicable limitation periods, avoiding the loss of the claim through the mere passage of time.

Is a rental bond or a judicial deposit being wrongfully withheld from you, or are you facing an accusation of failing to return a legally required deposit? The correct distinction between a civil dispute and a criminal offense is decisive from the very first moment. At RAKH ABOGADOS we defend your interests with technical rigor throughout Spain.

Frequently asked questions

Does a landlord who fails to return my rental bond commit a criminal offense?

See answer in Frequently Asked Questions →