It is very common for an owner to sell a property and receive all or most of the money but not hand it over to the buyer until after a certain amount of time (either because they need time to buy another property with the money obtained from the sale or because the previously purchased property has not been handed over to them, or due to other circumstances).
The maximum period, including the last day the seller has to hand over the property's keys, is agreed upon in the public deed of sale that is formalised before a notary. After this period, an amount is usually set as a penalty for each day the keys are delivered late.
But, during this time, in which the seller ceases to be the owner but occupies and uses the property, in what capacity do they occupy the property?
Depending on how long the seller is allowed to continue using the property that has already been transferred and on the agreements that the seller and buyer wish to reach between themselves, especially in reference to who and in what proportion each of them is responsible for the expenses inherent to the property, the legal deed of the sale must outline the legal status of the seller to avoid future headaches and unnecessary surprises. In principle, the rental formula should be ruled out -even if the payment of an amount similar to that of a rent during this period is agreed- due to the problems that could arise.
First, let's look at the differences between ownership and possession, or owner and holder.
What does possession mean?
As the word clearly indicates, possession means whoever has use, or has the possibility of having use, of the house or property. The possession, therefore, belongs to:
1. The owner who has not transferred the use of the property for any reason whatsoever.
2. The person to whom the use of the property has been transferred by the owner, whether as lessee, hold-over tenant or commodater.
What is home ownership?
Therefore, while possession is obtained by the owner transferring the use of the property or house to a third party, ownership is obtained by a transfer, either by sale or purchase, inheritance or donation.
The possessor, therefore, will only have the right to use the property, while the owner not only has the right to use it but also the capacity to dispose of it as they wish, within the current legislation.
Legal formulas to stay temporarily in the sold house
Once a property has been sold in which the seller (owner) is going to use for some time, the right of ownership passes directly to the buyer, who will have to ensure, by means of the appropriate agreements and their regulation, that delivery is made during or on the agreed time limit and in the conditions and state in which the property was purchased.
Therefore, this right of use, or temporary possession of the seller of the property, could be regulated by various legal concepts by virtue of the principle by which possession is obtained, which is none other than that of transfer.
As we have seen above, possession of the property is obtained, among other things, by the voluntary cession of the owner, through any of the following formulas: 1) lease; 2) occupation as a hold-over tenant with the owner's consent; 3) occupation as a commodater, also with the owner's consent.
In the case we are analysing, occupation by the previous owner for a specific period, we have to rule out leasing, a figure usually proposed when the periods of continued residence in the property exceed three or four months: "I sell, I collect the price, but I pay rent for the time I am going to stay in the property". The risk of agreeing to this proposal is nothing less than the possibility of finding oneself with a paid property and a lease that can last up to five years at the will of the tenant (previous owner), in accordance with the current legal regulation of the lease, which cannot be contravened, even by express agreement between the parties, and any agreement that attempts to go against the law and the extensions contained therein will be sanctioned by nullity.
Therefore, we would be left with the options of precarium and commodate, legal figures very similar to each other, which can get mixed up, and we must be extremely careful when choosing the right one, always depending on the agreements reached by the intervening parties -seller and buyer-, based on who and in what proportion the expenses will be paid, or not, during the period of tolerance of permanence by the former owner; such as community expenses, home insurance, property tax, repairs on elements damaged or damaged fortuitously, etc.
The main difference between precariums and commodates is that the latter, the commodate, is made for a specific use or term.
A precarium occurs when the owner, in this case, the buyer, tolerates or cedes the use of the property to another person for the use of the property without further consideration and without paying rent. This assignment is usually made without establishing a specific duration or specifying a specific use, and the owner may request to recover the property at any time.
A commodate consists of ceding the use of the property free of charge -without paying any rent-, although it is established for a specific use and/or for a defined period. Both parties may agree that, among the obligations of the commodater (in this case the former owner of the property), and given the term agreed, the latter will bear certain expenses, which will have to be specifically determined, in addition to those required by law, which is all those necessary for the use and maintenance of the property provided.
The commodater must keep and use the property and return it when the agreed term expires, or the use for which it was lent concludes.
It turns out that the most common in practice, in these situations, is to agree in the deed itself a period that is called precarium, which will be more or less reasonable, if the seller does not have to pay any amount during his stay in the property for any reason. However, I understand that the most legally appropriate, for all that has been said above, is to agree that said period is a commodate, as it is precisely the time limitation characteristic of the same, which differentiates it from a precarium.