This article looks at how to deal with situations where our own home or second home is illegally occupied by unidentified persons.
The first thing is to define this type of behavior in criminal terms
If it is our main residence, we would have to report the occupants to the police or duty court for breaking and entering. The Spanish Criminal Code, indeed, in article 245.2 says that this crime consists of “… the entry into a private individual’s dwelling by someone who does not live there, and who enters or remains in it against the will of its owner. This crime is punishable by a prison sentence of six months to two years.
If it is a second home that the owners are not occupying, then the occupants must be reported for the offence of squatting. This scenario is covered by article 245.2 of the Spanish Criminal Code which establishes that “anyone who occupies, without due authorization, a property, dwelling or building belonging to others that is not their residence, or who stays in it against the owner’s will, will be punished by a fine: in Spain, the Courts impose not just an amount of a fine but its duration, so a fine of €100 could be imposed, for example, for each day of three months.
As we can see there is a significant difference in the way this type of crime is punished and certainly the imposition of a fine on the squatters does not seem to be sufficient punishment to discourage and prevent this type of behaviour. In fact, these occupants, in most cases, have manuals of action (obtained even through the Internet) that help them stay in other people’s property for long periods of time against the will of the owners.
The measures currently provided for in the Spanish legal system, therefore, are ineffective and tend to protect the illegal occupants once they have managed to install themselves in a dwelling after the first 48 hours, a timescale connected with the definition of “delito flagrante “ in article 490 of Ley de Enjuiciamiento Criminal. This provides the police with a margin to act inmediately, after which decisions must be supervised by the Courts.
Likewise, the state security forces, upon receiving these complaints (often badly explained by the injured parties and without supporting documentation), limit themselves to referring them to the corresponding court, with the consequent delay in restoring the possession situation which in some cases can take more than a year given the use of all kinds of procedural delaying tactics by the occupiers (asking for duty solicitors, false rental contracts, denouncing owners for harassment, appeals, etc.).
It is therefore necessary to be very clear about how we should act during the first 48 hours in order to prevent this situation from being drawn out and the resulting consequences.
Without being exhaustive, we give some advice below so that owners can act quickly and effectively against these offences.
The second thing is to prepare a report for the police or Court
It might seem obvious but it is very important to have ready the documentation that proves our ownership of the property along with a copy to give to the police or Court along with the denuncia.
In this context, it is always a good idea to keep a copy of our title deeds in both hard copy and digital format. We can even keep an e-copy on our mobile phone.
We can also copy receipts that accredit payments for water, electricity, community and municipal taxes as well as an Empadronamiento from the local Ayuntamiento showing our residence in the property, or even a census certificate from the same council. All this documentation would be submitted with our denuncia.
The third thing is to request an urgent injunction without the occupiers being present
In fact, in order to avoid the delays inherent in criminal proceedings, we should request the Court to impose an urgent injunction, our denuncia providing the judge with all the aforementioned evidence. For this reason, given the difficulty that drawing up such communication with the Court entails, it is better to have a lawyer to write the denuncia and present the case and the documentation that accredits us as the injured parties in a concise and clear manner.
Spanish law provides for the adoption of interim measures during the process and prior to sentencing. They may even be requested without the occupiers being at the hearing. If an injunction is granted it leads to the immediate eviction of the occupiers so the length of the process no longer represents an obstacle to regaining possession of the dwelling and, without doubt, makes such occupations pointless and unprofitable, with the perpetrators knowing that in just a few days the judicial system will provide an effective response.
These measures are regulated by article 13 of the Criminal Procedure Act, which provides that the first steps are to record evidence of the crime that may disappear, to collect and preserve any evidence that would verify it and identify the offenders, and to detain where appropriate those considered guilty of the offence and to protect those affected or damaged by it, including their families or third parties, for which purpose the interim injunction referred to in article 544a or the protection order provided for in article 544b of the Act may be granted.
Finally, please note the following:
The law allows for the adoption of a series of initial measures aimed at protecting injured parties when it is clear that returning a property to its legitimate owner after it has been illegally occupied is the appropriate and immediate measure to be taken in this respect.
Nobody can enter our habitual residence without consent because the inviolability of a home is a fundamental right recognized in article 18 of the Spanish Constitution. The problem arises when an illegal occupant uses this very right in their own favour because once an occupation goes on for months, the fundamental right of the inviolability of the home can be claimed by the occupier meaning that an owner cannot break into their own property.
Such being the case, if no more than 48 hours have passed and the squatters have not changed the locks, call the police quickly! This is a flagrant offence and they can evict occupiers without a warrant. Once more than 48 hours have passed, however, since the property was occupied, your home will have become their dwelling, and they will enjoy this so-called usufruct and the same right to the inviolability of the home applies, and a Court Order is required before anyone can enter or search the property.
Many squatters are habitual occupiers, changing locks and even reporting themselves to the police, saying they have been inside for weeks.
Once a property has been occupied for more than 48 hours, your home will have become the squatters dwelling.
Source consulted for this article: Revista jurídica Economist & Jurist