Criminal Lawyers in Undue Retention
Specialist defense in cases of non-return of vehicles, machinery, or goods. The interversion of the possessory title
Undue retention (Article 253 CP) punishes anyone who, after lawfully receiving an asset under a deposit, lease, rental or any other arrangement obliging its return, appropriates it by refusing to hand it back: the penalty is imprisonment of 6 months to 3 years if the value exceeds 400 euros, and 1 to 6 years plus a fine if it exceeds 50,000 euros. Mere delay in returning the asset is not enough; an act demonstrating a definitive intent to appropriate is required, such as concealing the asset, selling it, or flatly refusing requests for its return. Our defence establishes that possession remained available to the owner, absent the act of appropriation the offence requires.
From Lawful to Unlawful Possession
Misappropriation in its retention modality (keeping something received) is the most common crime in the field of financial leases (leasing/renting) and deposits. The user receives the car or machine legally, but at some point, ceases to have a title to possess it (end of contract, non-payment) and refuses to return it.
The criminal key is the moment when possession transforms. Mere delay in return (which is civil) is not enough. An act demonstrating definitive appropriation will is required: hiding the asset, trying to sell it, or a flat and unjustified refusal to delivery requests.
Misappropriation: Offence and Elements (Art. 253 CP)
Undue retention is a manifestation of misappropriation under Art. 253 CP, which punishes whoever, to another's detriment, appropriates for themselves or a third party money, effects, securities or any movable thing received in deposit, commission or custody, or by any other title producing an obligation to deliver or return it, or denies having received it. The core element is the interversion of the possessory title: the subject, who possessed lawfully, transforms that lawful possession into an act of disposal or definitive refusal as if they were the owner. It is an intentional offence requiring the intent to incorporate the thing into one's own patrimony.
Penalties (Arts. 249 and 250 CP)
The penalties refer to those of fraud. Under Art. 253 CP, misappropriation is punished with the penalties of Art. 249 CP —6 months to 3 years' prison when the amount exceeds 400 euros— or, where appropriate, those of Art. 250 CP —1 to 6 years' prison and fine— when aggravations concur such as the amount exceeding 50,000 euros, falling on basic-necessity goods or goods of artistic, historical or cultural value, or abuse of personal relationships. If the value of what is appropriated does not exceed 400 euros, the facts constitute a minor offence sanctioned with a fine of 1 to 3 months (Art. 253.2 CP).
Boundary with Theft, Unfair Administration and Civil Wrong
It is worth delimiting the figure. Unlike theft (Art. 234 CP), where the author appropriates a thing they did not possess, in misappropriation the thing had been received lawfully. As opposed to unfair administration under Art. 252 CP —which sanctions whoever, having powers to administer another's patrimony, exceeds them causing damage—, misappropriation falls on specific things received with an obligation to return. And, above all, it must be distinguished from the mere civil breach: simple delay in return, fortuitous loss or the exercise of the right of retention (Art. 1780 Civil Code) for non-payment of a service do not amount to an offence as long as there is no act of definitive appropriation.
Why Alonso Sala for Undue Retention?
Title interversion defense: lawful → unlawful possession. Appropriation act vs civil delay
- Possession transformation: user receives good legally (leasing/renting/deposit). Key moment: ceases title possess (contract end/non-payment) + refuses return. Mere delay = civil, NOT criminal.
- Definitive appropriation will act: hide asset (remove vehicle GPS), attempt sell, flat unjustified refusal delivery requirements. Without act = NO crime, only contractual breach.
- Legitimate retention right: carriers/depositories Art. 1780 CC retain goods until transport/storage payment. Retain for service non-payment = civil right exercise, NOT crime (if NOT dispose/sell).
- Response requirements vital: answer 'your disposal, come get' = recognize other's ownership + lack appropriation intent. Silence/ignore bureaufax/notarial = key proof intent.
Guide to Property Crimes in Spain: Defense Strategies
Property crimes (Crimes Against Assets) are regulated in Title XIII of the Spanish Criminal Code (Art. 234-304). These offenses range from petty theft to complex economic fraud, with penalties varying greatly depending on the amount involved, the method used, and any aggravating circumstances.
Key Distinctions: Theft, Robbery, and Fraud
| Offense | Article | Key Element | Basic Penalty |
|---|---|---|---|
| Minor Theft (Hurto leve) | Art. 234.2 | <400€, no force | Fine 1-3 months |
| Theft (Hurto) | Art. 234.1 | >400€, no force | 6 months – 18 months |
| Aggravated Theft (Art. 235) | Art. 235 | Special items/multi-recidivist | 1 – 3 years |
| Robbery with Force | Art. 240 | Breaking in/tools | 1 – 3 years |
| Robbery with Violence | Art. 242 | Direct threat/intimidation | 2 – 5 years |
| Fraud (Estafa) | Art. 249 | Deception + financial harm | 6 months – 3 years |
Main Defense Strategies in Property Crimes
Challenge the Animus Lucrandi
Demonstrate that the accused had no intent to profit — a valid defense in alleged theft cases.
Contest Valuation
Dispute how the value of the stolen item was assessed. Below €400 = minor offense with much lower penalties.
Prior Consent or Ownership Claim
In disputes between acquaintances, prove the accused believed they had a right to the item.
Recidivism Analysis
Many aggravated theft charges rely on prior criminal record. Challenge the computation of prior offenses.
Chain of Custody (Receiving Stolen Goods)
Challenge the prosecution's evidence that the accused knew the items were stolen.
Error of Type Defense (Fraud)
In commercial fraud cases, demonstrate that the accused genuinely believed their representations were true.
Critical: Time Limits for Evidence
In property crimes, digital evidence (CCTV footage, mobile location data) is often deleted within 30 days. Contacting a specialist lawyer immediately after arrest or charge is essential to preserve exculpatory evidence.
Retention
Is it a crime not to return a renting or leasing car?
What happens if I lost the item I borrowed?
Can I keep the goods if the client doesn't pay me?
If I sell something I'm paying in installments?
What is the penalty for keeping a company mobile upon dismissal?
Is 'leasing' different from 'renting'?
What if I refuse to return the premises keys?
Can I go to jail for this?
How do I prove I didn't want to keep it?
Is it a crime not to return commercial samples?
Is failing to return a vehicle after a renting contract undue retention?
Is withholding a client's documents a crime?
How we defend an undue-retention charge
The line between a civil breach and a criminal offence lies in the title on which the money or the item was received and in whether a demand for its return went unanswered. The defence evidences the real contractual relationship, any outstanding counter-payments or set-offs, and the absence of any definitive act of disposal. We act before the court from the first summons.
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