The controversial failed sale of a home in Torrevieja in 2022 between two German citizens resulted in a judicial case. The Prosecutor’s Office and the private prosecution sought €77,000 in compensation and three years in prison for the defendant, the property owner, on the grounds that she had subsequently sold the house to another individual without returning the money paid.
Nevertheless, Orihuela Criminal Court No. 4 has granted the defendant’s acquittal, concluding that there was no criminal deception and that the facts should be resolved through civil proceedings.
The case was initiated by a failed private sale of a residence in the Los Balcones development in Torrevieja. The customer was unable to secure financing prior to the deadline stipulated in the contract. The public deed was never signed, despite the fact that €75,000 was paid in advance. The property was subsequently sold to third parties by the defendant, which resulted in the filing of a complaint for fraud.
Facts that have been verified
The defendant contacted the complainant in August 2022 to discuss the sale of the property. On August 13th, 2022, the defendant signed a reservation document, with a total price of €370,000 and a deed signing date of October 31st, 2022. She explicitly stated that the appointment with the notary would not be postponed beyond October 31st, 2022, and delivered over €3,000 in cash at that time.
The buyer and the spouse of the woman who has since been exonerated convened in Germany on August 21st to receive a cash payment of €57,000. Additionally, they consented to acquire the home furnishings for €4,000, with the injured party contributing €2,000 in cash.
The private sales contract was executed by the parties a week later. The initial stipulation of the contract required the buyer to pay €15,000 within three weeks. The transaction was finalised on August 30th, 2022. The complainant was awaiting financing for the remaining quantity of €295,000.
Similarly, the initial stipulation explicitly stated that “the remaining portion of the agreed price will be paid upon the signing of the public deed of sale.” The aforementioned signature is scheduled for October 31st, 2022. The deposit money would be forfeited in the event of the buyer’s cancellation, and it would be transferred to the vendor. Double the deposit would be reimbursed to the customer by the seller in the event of contract cancellation (Art. 1454 CC).
The defendant, who has since been acquitted, executed a deed of sale of the property to third parties on July 25th, 2023. There is no record of the return of the €75,000 she was claiming, and there is insufficient evidence that she did so without prior dissolution of the signed contract or notification to the complainant.
Nevertheless, the Court determined that the dispute did not satisfy the criteria of Article 251.2 of the Criminal Code, which required criminal deception, and classified it as a civil dispute.
In the ruling, the judge explicitly enquires, “Where is the deception that the type requires?” He notes that the buyer was informed that the property would be relisted if he failed to secure financing in a timely manner, which subsequently transpired.
In order to underscore that frauds that are subject to Article 251 of the Criminal Code must also entail a minimum level of deceptive manoeuvring, the ruling incorporates updated references from the Supreme Court, such as the most recent Supreme Court ruling, 631/2024.
The judge in this instance has determined that “a failed sale as a result of insufficient financing cannot be criminalised.” María Barbancho Saborit, the defendant’s attorney, stated, “These types of rulings reinforce the notion that not all economic disputes are criminal.” “It is imperative to distinguish between breaches of contract, which are inherent in civil matters, and truly criminal conduct and preserve the presumption of innocence.”
The decision is not conclusive and may be appealed to the Alicante Provincial Court. Numerous witnesses, including those from the vendor, the defendant’s family, and professionals involved in the purchase and sale process, were presented during the trial, in addition to a substantial amount of documentary evidence.
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