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Article 236 of the Spanish Criminal Code: taking one’s own property from a lawful holder
Quick answerArticle 236 punishes with a fine of three to twelve months an owner who takes his own movable property from a person lawfully holding it, causing loss to that holder or to a third party. Where the value does not exceed four hundred euros, the fine is one to three months.
Known in Spanish doctrine as furtum possessionis, this provision is unusual in that it protects lawful possession against the owner himself. The conduct sits on the border between civil and criminal wrongdoing, so the delimitation of its elements is decisive. Its usual premise is a title legitimising a third party’s holding, such as a lease, a deposit, a pledge, the right of retention under article 1600 of the Civil Code, or a judicially ordered attachment.
Also cited as: article 236 Spanish Criminal Code · art. 236 CP · Spanish Penal Code article 236 · artículo 236 del Código Penal.
Wording of the provision
1. Any person who, being the owner of a movable thing or acting with the owner’s consent, takes it from a person lawfully holding it, to the detriment of that person or of a third party, shall be punished with a fine of three to twelve months.
2. Where the value of the thing taken does not exceed 400 euros, a fine of one to three months shall be imposed.
Consolidated text published by the Spanish Official State Gazette, Organic Act 10/1995 of 23 November, the Criminal Code. Unofficial English rendering; the Spanish text is the authentic one.
Sentencing range. A fine of three to twelve months. Where the value of the thing taken does not exceed four hundred euros, a fine of one to three months, which constitutes a minor offence under article 13.
Key facts
| Location | Book II, title XIII, chapter I of the Criminal Code, on theft |
|---|---|
| Protected interest | Lawful possession of the movable thing, not ownership |
| Perpetrator | The owner of the thing, or a person acting with the owner’s consent |
| Victim | The lawful holder and any third party who suffers loss |
| Subject matter | A movable thing belonging to the perpetrator |
| Result | Loss to the lawful holder or to a third party |
| Current wording | Sole article 117 of Organic Act 1/2015 of 30 March, in force since 1 July 2015 |
Elements and scope
- The perpetrator must be the owner, or act with the owner’s consent. A person who is neither owner nor acting on the owner’s instructions commits ordinary theft under article 234.
- A third party must hold the thing lawfully, under a valid title. Merely tolerated possession or unlawful detention falls outside the provision.
- An act of taking, that is, seizing the thing without the holder’s consent and against his will. Voluntary handing over, even if reluctant, changes the classification.
- Actual loss to the holder or to a third party. Case law requires real financial detriment, so a harmless taking is not punishable.
- Intent covering the third party’s possession and the resulting loss; no strict intent to gain is required, since the perpetrator recovers something already his.
Points of application
Loss as an element of the offence. The requirement of loss is what separates this offence from the exercise of ownership. The Second Chamber of the Supreme Court has emphasised that the mere recovery of the thing, without proven financial detriment to the holder, does not satisfy the provision.
Taking the law into one’s own hands. Where the owner uses violence or intimidation to recover the thing, the classification shifts to article 455, on taking the law into one’s own hands, so that article 236 is reserved for non-violent takings.
Attached property. The taking by the owner of property placed under judicial deposit may concur with the offence of breach of a court order under article 468 or with the removal of assets under article 257, depending on the title legitimising the holding and the purpose pursued.
Vehicles at a garage and the right of retention. The most frequent case in practice is removing a vehicle from a garage without paying for the repair. Article 1600 of the Civil Code confers a right of retention, so the garage’s holding is lawful and the taking falls within the provision.
Minor offence and limitation. Where the value does not exceed four hundred euros, the offence is minor, with the one-year limitation period of article 131 and the procedure for minor offences under articles 962 and following of the Criminal Procedure Act.
Defence strategy
Deny the lawfulness of the holding. If the title supporting the third party’s possession had expired, been terminated or never existed, the offence fails. The contract, its termination or the prior demand should be produced.
Dispute the existence of loss. The absence of proven financial detriment makes the conduct non-punishable. The valuation of the alleged loss and its causal link with the taking should be challenged.
Establish the holder’s consent. Voluntary handing over of the thing, even reluctantly, excludes a taking. Messages, delivery notes and recordings of the handover are decisive.
Rely on mistake as to the lawfulness of the holding. A belief that the title had expired may found a mistake of fact or of law under article 14, either excluding or mitigating liability.
Explore reparation and a guilty plea. Since the penalty is a fine, repairing the loss before trial opens the mitigating circumstance of article 21.5 and facilitates a negotiated outcome or dismissal in minor-offence proceedings.
Defence in this area
If you or your company are facing proceedings in this area, the firm provides defence and prosecution in Alicante and Madrid, with 24-hour assistance to detained persons.
Are you under investigation or facing charges in Spain? Société Juridique acts for foreign nationals throughout Spain, with offices in Alicante and Madrid and a 24-hour custody line. +34 669 30 21 13 or enquire online.
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This page is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the case and requires review of the file by a lawyer. The English rendering of the legal text is unofficial.
Last reviewed: 21 September 2026.
Frequently asked questions
Can taking something that belongs to me be an offence?
Yes, where the thing is lawfully held by another person and the taking causes loss to that person or to a third party. The provision protects lawful possession, not ownership.
What if I remove my car from the garage without paying?
The garage has the right of retention under article 1600 of the Civil Code, so its holding is lawful. Removing the vehicle without paying for the repair may constitute the offence under article 236.
What penalty applies?
A fine of three to twelve months as a rule, and a fine of one to three months where the value does not exceed four hundred euros. No custodial sentence is provided.
What if I use force to recover the thing?
The use of violence or intimidation shifts the classification to article 455, on taking the law into one’s own hands, punishable by a fine of six to twelve months.
Is settlement with the injured party possible?
Repairing the loss allows the mitigating circumstance of article 21.5 and facilitates a guilty plea. In minor offences, reparation may lead to dismissal on grounds of expediency.
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