Occupation: Differences between usurpation and trespassing

This situation has created a great social alarm, with the popular belief that once the squatters have entered the house it is almost impossible to evict them.

It has also been repeated on many occasions, the idea that a squatter enters a private home and if 48 hours have elapsed since the occupation took place, the eviction is impossible, the owner having to bear all the expenses and consumption of the house , until a judicial sentence is issued that agrees the eviction of the property, which is not true.

Next, we will differentiate the different cases in which the occupation is carried out peacefully in a house owned by a bank or an individual, which is empty, since in these cases we are talking about a usurpation.

A different thing is when the occupation occurs in an address that constitutes a residence, since in this case we are faced with a crime of trespassing.

We first differentiate the crime of usurpation, this is regulated in article 245 of the Penal Code. This same precept differentiates between the usurpation being carried out with or without violence and with or without intimidation.

Article 245.2 of the Penal Code itself establishes that “whoever occupies, without due authorization, a property, dwelling or building of others that does not constitute dwelling, or stays in them against the will of its owner, will be punished with a fine of three to six months ”.

Therefore, according to the settled jurisprudence, the legal asset to be protected here is the real estate heritage.

As stated by criminal lawyers, and according to the necessary requirements established by the Supreme Court, it is required:

The popular assertion that, if 48 hours have not elapsed since the occupation, the State Security Forces and Corps can be disproved without the need for a judicial resolution.

This is not the case, since in our legal system there is no legislation in this regard. Therefore, if the police officers appear in the building and the squatters decide not to evict it, a police report must be made by the state security forces and bodies identifying the people in order to subsequently be able to send it to the Night Court.

Once the statement has been received by the Courts, a procedure will be initiated for a minor offense of usurpation, so that a trial date is set.

Unfortunately, one of the current problems in Spanish courts is that the appointment or setting of the date for the trial is not urgent, and it takes longer. And while, the "squatters" remain in the property, in most cases generating expenses and consumption of the housing supplies, such as water, electricity, gas, etc.

As for the crime of trespassing, this is regulated in article 202 of the Penal Code. As provided, article 18.2 of the Spanish Constitution “the domicile is inviolable. No entry or registration may be made in it without the consent of the owner or judicial resolution, except in the case of flagrante delicto ”.

Article 202 in its first point establishes the following:

This article aims to offer criminal protection of the home, this protection is understood as one that tries to safeguard the space and personal and family privacy, in order to avoid interference and external aggressions of the personal and intimate space of the person who develops his personal activities and relatives.

Therefore, the dwelling is understood as that place and that physical space where people develop their private lives.

Then, in the STS of January 20, 1994, it is established that “the crime of trespassing protects the privacy of the human person, safeguards the most valued privacy of men and women, does not defend possession, or the property, nor any other real or personal right in the patrimonial sense. "

As provided in article 202 of the Penal Code, entry or maintenance in the dwelling must be carried out against the will of the inhabitant.

It must exist in a clear and conclusive way, that will. Consent cannot be obtained through deception and undermining the privacy of the home.

In this case, the resident is the legitimate owner of the property, the same happens when there are several people who reside in the residence. These people have the power to authorize or deny entry to a third party, since in case of conflict the prohibitive will prevails.

In cases where there is an illegal occupation of the dwelling, we would be facing a crime of trespassing and, consequently, the bodies and security forces of the State, can evict the "squatters", without the necessary judicial authorization.

Therefore, they can practice an eviction immediately, as long as it is proven that the house was not abandoned, and in which the owners reside.

In the crime of trespassing, there is no deadline for the effective practice of eviction by the police, since the time that the squatters have been in the house is not affected. We must be clear that what is really binding for the purposes of this crime is the nature of the property, since it is considered a residence.

Usurpation is a minor offense regulated in article 245 of the Penal Code and punishable by a fine of three to six months, while trespassing is a less serious crime regulated in article 202 of the Penal Code and punishable by penalty. from prison.

In the crime of usurpation there is no possibility of instituting a precautionary measure of eviction as it is a minor crime and in the crime of trespassing if there is the possibility of establishing a precautionary measure when it is verified by the Court that the occupied dwelling It is considered a dwelling and that it is not abandoned.

When it comes to the occupation of an abandoned home, which does not constitute a dwelling, the state security forces and bodies, unless they appear at the time the crime is being committed, cannot proceed to evict the property until facts are not checked.

On the other hand, when it is a matter of dwelling, regardless of the time that the occupants are in the house, they can proceed to eviction, as it is a flagrant crime.