The counterclaim (reconvencion) in Spanish property litigation in 2026: LEC Article 406 and how a defendant can turn a property lawsuit into their own claim

A reconvencion is a formal counterclaim that a defendant files at the same time as their contestacion to the demanda, under Article 406 of the Ley de Enjuiciamiento Civil (LEC). It lets the defendant become a counter-plaintiff, asserting their own claim against the original plaintiff inside the same court proceeding rather than starting a separate lawsuit. For property owners in Spain, this matters because a boundary, community fee or contract dispute can carry a reverse claim that is cheaper and faster to litigate in one case than in two.

What is a reconvencion and when can a defendant file one?

A reconvencion is the defendant’s own pretension against the plaintiff, filed alongside the contestacion to the demanda in a civil proceeding. Article 406.1 of the LEC provides that when contesting the demand, the defendant may formulate the pretension or pretensions they believe they hold against the plaintiff. The counterclaim is admitted only if a connection exists between its claims and those of the main demand. Without that nexus, the court will not accept it and the defendant must file a separate lawsuit.

In practice, the reconvencion is filed as a written document attached to the contestacion, following the structure required for a demanda under Article 399. It must state the specific judicial protection sought, the facts that support it and the legal grounds. The defendant does not need court permission to file it, but the court will screen it for the connection requirement and for competence before admitting it.

For a property owner, the practical trigger is being sued and having a related claim against the same plaintiff. A community suing for unpaid fees may face a counterclaim for property damage the community caused. A neighbour suing over a boundary may face a counterclaim for prescriptive acquisition of the disputed strip. The reconvencion lets both issues be resolved in one judgment.

What are the admissibility limits under Article 406.2?

Article 406.2 sets two competence limits on the reconvencion. First, the court must have objective competence by subject matter and amount. If the counterclaim falls outside the court’s competence, it is not admitted. Second, the action must not require a different type of proceeding. If the counterclaim must be litigated in a different juicio type, it cannot be brought as a reconvencion.

There is one exception built into the same paragraph. If the connected action, by reason of its amount, would have to be heard in juicio verbal, it can still be exercised as a reconvencion inside an juicio ordinario. This means a defendant in an ordinary proceeding can counterclaim with a smaller connected claim that would normally go through the verbal track, without being forced to split the litigation.

If the court inadmits the reconvencion for lack of objective competence, the auto can be appealed. The main proceeding is suspended until the appeal is resolved, which means the reconvencion can delay the principal case. This is a strategic consideration: a counterclaim that triggers a competence dispute may slow the entire lawsuit.

Limit	Rule	Effect
Objective competence	Art 406.2: court must have competence by matter or amount	Inadmission if exceeded
Different proceeding type	Art 406.2: action must not require a different juicio type	Inadmission unless verbal exception applies
Verbal exception	Art 406.2: connected action by amount suitable for verbal	Admissible inside ordinary
Mercantil transfer	Art 406.2: connected action competent to Juzgados de lo Mercantil	Court inhibits and remits to Mercantil

Why does Article 406.3 ban implicit reconvencion?

Article 406.3 contains a rule that catches many defendants off guard: a written submission that ends by requesting absolution from the plaintiff’s claims is never considered a formulated reconvencion. The defendant must explicitly express the specific judicial protection they seek against the plaintiff. Merely arguing that the plaintiff’s case fails, or requesting dismissal, does not count as a counterclaim.

This rule exists because the LEC separates defence from counter-attack. A defence seeks absolution: the defendant asks the court to reject the plaintiff’s claim. A reconvencion seeks a positive judgment: the defendant asks the court to grant them something. The two are procedurally different, and conflating them would let defendants smuggle in claims without giving the plaintiff a proper opportunity to respond.

The consequence is severe. If a defendant believes they are counterclaiming but their written submission only asks for absolution, the court treats it as a defence. The defendant loses the chance to bring that claim in the same proceeding and must file a separate lawsuit. This is why the reconvencion must be drafted as a standalone pretension with its own petitum, not as an argument against the plaintiff’s case.

For property litigation, this distinction matters in practice. A defendant in a community fee claim who wants to counterclaim for water damage must say so explicitly and state the amount and legal basis, not merely argue that the fees were unjustified. The same applies to a defendant in a boundary dispute who wants to assert prescriptive acquisition.

How does Article 400 preclusion apply to the reconvencion?

Article 406.4 states that the provisions of Article 400 apply to the reconvencion just as they apply to the demanda. Article 400 is the LEC’s preclusion rule for the allegation of facts and legal grounds. It requires that when a claim can be based on different facts or distinct legal grounds or titles, all of those known or invocable at the time of filing must be alleged in the filing itself. Reserving arguments for a later process is not permitted.

This means the reconvencion is subject to the same preclusion discipline as the original demand. The defendant-turned-counter-plaintiff must bring all facts and legal grounds supporting their counterclaim at the time of filing. They cannot hold back a legal theory and introduce it later, even if it is based on the same facts. The preclusion also feeds into res judicata: under Article 400.2, facts and grounds that could have been alleged in a prior proceeding are treated as the same for both lis pendens and res judicata purposes.

The Uría Menéndez analysis of Article 400 confirms this. The preclusion rule does not oblige the defendant to reconvención in the first process, as the Tribunal Constitucional held in Sentencia 106/2013. But if the reconvencion is filed, it is subject to the same preclusion regime as the demand, per Article 406.4. This means a defendant who chooses to counterclaim must do so completely, or lose the unused grounds.

For property owners, this has a direct cost. A defendant in a contract nullity case who counterclaims for damages must allege all grounds for those damages at the filing stage. A defendant who counterclaims in a proceso monitorio that has transitioned to juicio verbal must bring every fact supporting the counterclaim in the contestacion, not at the vista.

What are the reconvencion rules in juicio verbal?

The reconvencion works differently in juicio verbal than in juicio ordinario. Article 438.2 states that no reconvencion is admitted in verbal proceedings that, by law, must end in a judgment without res judicata effects. This excludes the entire category of verbal cases where the law strips the finality of the judgment.

For the remaining verbal cases, Article 438.2 admits a reconvencion on two conditions: it must not make the verbal track improper (meaning it must not push the case into ordinary by amount or subject matter), and a connection must exist between the counterclaim and the main demand. If both conditions are met, the reconvencion is admitted and governed by the same rules as in the ordinary proceeding, with one difference: the response window is 10 days, not 20.

Article 438.3 adds a further rule for the verbal track. The defendant may allege a compensable credit in the contestacion, but if the amount of that credit exceeds the verbal threshold, the tribunal will not consider it at the vista. The defendant is told to pursue it through the appropriate tribunal and procedure. This prevents a defendant from using a large compensable credit to derail a verbal proceeding.

The practical effect for property owners is that the reconvencion in verbal cases is narrower. A community fee claim under EUR 6,000 that goes through monitorio and transitions to verbal allows a counterclaim, but only if it stays within the verbal amount and is connected. A larger counterclaim must be filed separately. This is a key difference from the ordinary track, where the verbal exception in Article 406.2 lets a smaller connected claim ride along.

How does the plaintiff respond to a reconvencion?

Once the reconvencion is admitted, the original plaintiff becomes the actor reconvenido and must respond to it. Article 407 gives the actor reconvenido 20 days to contest the reconvencion from the date of notification. This response follows the same formal requirements as a contestacion to a demanda under Article 405: the plaintiff must admit or deny the facts, allege any procedural exceptions and state the grounds of opposition.

In juicio verbal, the response window shrinks to 10 days under Article 438.2. The actor reconvenido faces the same preclusion rules as the defendant did when filing the reconvencion: all facts and legal grounds for the opposition must be brought in the response, and none can be reserved for later.

The actor reconvenido can also raise the same competence objections the defendant could have raised. If the reconvencion should have been inadmitted for lack of competence, the plaintiff can argue this in their response. The court will then rule on admissibility before proceeding to the merits of both the original demand and the counterclaim.

What are the practical consequences for property owners?

The reconvencion is a strategic tool, not an automatic right. A property owner considering a counterclaim must weigh three factors: connection, competence and preclusion. The claim must be connected to the original demand, or it will be inadmitted. It must fall within the court’s competence, or it will be rejected. And all supporting facts and grounds must be alleged at filing, or they are lost.

The cost benefit is real. Litigating a counterclaim in the same proceeding saves the filing costs, the procedural delays and the evidence-gathering burden of a separate lawsuit. A defendant in a community dispute who also has a damages claim against the community can resolve both in one judgment, rather than running two cases in parallel.

The risk is equally real. A poorly drafted reconvencion that merely asks for absolution is treated as a defence under Article 406.3, and the lost claim cannot be re-introduced in the same case. A counterclaim that triggers a competence dispute under Article 406.2 can suspend the entire proceeding while the appeal is resolved. And the preclusion rule in Article 406.4 means a defendant who counterclaims incompletely loses the unused grounds permanently, as confirmed by the res judicata framework under Article 400.2.

For a property owner facing litigation, the decision to reconvención should be made with an abogado who can assess whether the counterclaim meets the connection test, fits the competence rules and can be fully pleaded at the contestacion stage. The reconvencion is not a free addition to a defence: it is a separate claim with its own procedural discipline.