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Illegal occupation of a habitual or second home can be a trespassing offence. Recommendations to avoid having your home “squatted”.

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Anyone who suffers the squatting of a property has several legal alternatives currently in force to recover their home. On the one hand, there is the criminal route by filing a criminal complaint for trespassing or usurpation of property, depending on whether it is a permanent or second home; and on the other hand, there is the civil route, with an express procedure in force since July 2018.

In the summer there is the highest number of people travelling and also the highest number of empty homes. On returning from holidays, some citizens have found that their habitual residence is illegally occupied and many others fear that on returning from their second residence – a beach flat, a mountain flat or a village house – it may be subject to squatting.
The use of one or the other legal route will depend on various factors related to “the conditions of both the occupant and the affected person, the characteristics of the property, the costs that the affected person can assume, the time of the occupation and even the workload of the competent court”.

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Criminal: trespassing or usurpation

Criminal proceedings are initiated by filing a complaint with the police station or Civil Guard post closest to the occupied property or with the court on duty. This complaint is free of charge and its prosecution will be pursued ex officio by the Public Prosecutor’s Office. However, if the person who suffers the illegal occupation wishes to appear in the proceedings as a private prosecutor and actively participate in the investigation and subsequent trial, he/she must do so through a private lawyer and solicitor.

What is the offence of occupying a habitual or second residence?

The dwelling is the place delimited and destined for the enjoyment of the private life of the dwellers with a legitimate use that can be permanent or temporary. The Supreme Court and the Public Prosecutor’s Office include in the concept of dwelling the so-called second homes in which people live occasionally throughout the year for festive or holiday reasons.

Anyone who illegally occupies a dwelling that constitutes a habitual or second residence will be punished with the crime of breaking and entering. According to article 202 of the Penal Code, anyone who enters a home against the owner’s wish will be punished with a prison sentence of 6 months to 2 years, but if the occupation is carried out with violence or intimidation, the penalty will be a prison sentence of one to four years and a fine of six to twelve months.

What are the requirements for reporting squatters ?

It is advisable to include in the report, whenever possible, certification from the Land Registry accrediting the ownership of the property (this can be done online and the registry certification can be received within hours) and to accredit the condition of the dwelling by means of a census certificate, ID card or receipts that demonstrate that the occupied property is the main home or second residence of the affected party.

In addition, it is advisable to provide information about the occupants (their characteristics, number, the possibility that they are a criminal group, problems of cohabitation with neighbours) and to provide witnesses from neighbours to prove the circumstances of the occupation and the ownership of the property.

It is possible to recover the house through police action?

Regardless of the judicial process that will be opened to punish the illegal occupation, the police can enter to identify, arrest and put an end to the crime, without the need for a warrant.

The argument is that as the “offence continues to be committed while the trespassers are in the occupied dwelling, a flagrante delicto is present”. However, the police should have no doubt that the crime is being committed in order to evict the occupants.

In fact, circulars such as those issued in 2019 by the High Prosecutor of the Balearic Islands and in 2020 by his counterpart in Valencia urge, on the one hand, the police to evict immediately without the intervention of a judge when the agents see the situation clearly; and on the other, prosecutors to request eviction as a precautionary measure in all cases. However, there is a lack of coordination between the different territories in terms of protocols for dealing with this problem.

There is no general rule setting a deadline for the police to evict squatters. That the police can only act in the first 48 hours to remove these criminals is a legend or fiction.

Can the judge approve the injunction to evict?

Article 13 of the Criminal Procedure Act allows the judge to adopt all those measures that are necessary to preserve and protect the ownership of the property by evicting the squatters and recovering the property within a few days.

To this end, the judge assesses whether there are relevant indications that the crime has been committed and that the legitimate owner is accredited, and also that there is fear of economic damage (costs of services to the owner, deterioration of the property…) in the event that the occupation is prolonged over time. In addition, the court analyses the proportionality of the damage to the owner and neighbours in relation to the possible vulnerability of the occupants or the concurrence of criminal groups. Eviction, in these cases, is usually a matter of hours.

What is the role of the Prosecutor's Office in these crimes ?

Since the approval in September 2020 of Instruction 1/2020 by the State Prosecutor’s Office and Instruction 6/2020 by the Secretary of State for Security of the Ministry of the Interior, criminal proceedings have offered the possibility of obtaining immediate precautionary measures to achieve a rapid and effective recovery of the occupied property..

How long can this criminal procedure take?

If the person affected by the squatting does not succeed in obtaining an injunction for eviction and restitution of the property, it would be necessary to wait for the resolution of the entire criminal procedure, in which case the procedure could take more than a year.

What to do when a vacant property is taken over by squatters ?

When the occupied dwelling is neither a main nor a second residence, it is considered to be an empty property. In this case, the illegal occupation is a crime of usurpation of real estate, punishable in article 245 of the Penal Code with a fine, and only in the case that violence or intimidation has been used to gain access to the property, it will be considered a more serious crime with a prison sentence of one to two years.

In this case, as in the case of breaking and entering, it is necessary to file a complaint with the state security forces or with the court. But the procedure is longer and the chances of obtaining a precautionary measure of eviction are more remote.

The “squatting phenomenon” basically occurs with empty properties, which are neither main nor second homes. In these cases, the problem in resolving these crimes “is the lack of resources in the courts to go faster.

How do the police deal with criminal trespassing?

As it is not a home and it is a minor offence, the police, according to article 490 of the Criminal Procedure Act, only intervene if when they enter the dwelling the crime is being committed (in fraganti) or, in the event that a complaint is filed immediately, the existence of a more serious crime, such as robbery, is alleged.

In these cases, squatters often create a flimsy but sufficient appearance of legality to induce doubt in the police, such as an alleged rental contract or a utility bill. In these cases, it is common that if the occupant alleges a state of necessity, he or she is even acquitted, which is why civil proceedings are more advisable.

Civil action to recover an illegally occupied home.

Since July 2018, it has been easier for owners or rightful possessors of squatted accommodation to regain possession of their property.

Law 5/2018 amended article 250 of the Civil Procedure Act to establish a channel of protection for the legitimate owners of illegally occupied homes and to be able to recover them in a short period of time, excluding from this procedure banks, real estate companies, investment funds or any other commercial or for-profit company.

With this reform, a new ‘express’ civil procedure came into force, which aims to speed up the deadlines and reduce the requirements for homeowners to evict squatters.

What are the main features of this express procedure?

This civil action allows for the precautionary eviction of the occupants of the dwelling and the possibility of filing a lawsuit against occupants whose identity is unknown. It also allows for serving of proceedings on the squatters even if they are unidentified.

The squatters have five days to prove that they have legitimate title to occupy the property. Otherwise, a court order will order the immediate handover of possession of the property to the plaintiff. The court also transfers the claim to Social Services in order to avoid situations of social exclusion, which in many cases lengthen the eviction procedure.

How to file a lawsuit?

A lawsuit must be filed in the courts of first instance, with the assistance of a lawyer and solicitor. The claim must accredit the ownership of the occupied property (certification from the Land Registry) and, very importantly, request the immediate eviction of the squatters and provide the evidence deemed necessary to prove the time and circumstances in which the occupation took place.

It should be borne in mind that in order to avail oneself of this type of claim, no more than one year must have elapsed since the squatters entered the property. Otherwise, civil proceedings only offer slower alternatives.

How long it takes to repossess the property?

This civil action is designed to be resolved in a few days or weeks when the squatters do not present titles or documents that can accredit or justify their stay in the property.

The plaintiff can request the immediate surrender of the property. The judge, even before issuing a sentence, will open a period of 5 days for the defendants to provide a title to prove that they have the right to remain in the property. If they do not justify the occupation, the court orders the immediate handing over of the property to its legitimate owner, provided that they have sufficiently accredited their right.

No appeal is possible against this decision, and the eviction will be carried out against any of the occupants who were in the property at the time, but in practice the procedure can take at least 6 months due to the judicial workload.

It is more realistic to speak of “months or even quarters to recover the occupied dwelling, both in civil and criminal proceedings”, except in cases of flagrante delicto in which the public force can proceed to eviction directly without the need for a judicial decision.

What should never be done?

Despite the fact that squatters are living in someone else’s house and are using water, electricity or gas, the owner who resorts to both civil and criminal proceedings must never cut off the supplies to the occupied dwelling because he could be convicted of a crime of coercion, punishable in article 172 of the Penal Code with up to three years’ imprisonment.

Nor is it advisable to fall into desperation by entering the property to change the lock. If enough time has elapsed to consider that the property is already the occupants’ habitual residence, the owner could be convicted of breaking and entering, punishable under article 202 of the Penal Code with up to four years in prison.

How to avoid squatting in your home

Owners of uninhabited properties need to put into practice some tips to avoid squatters in their properties:

  • The ideal solution to avoid squatting in an empty property is to rent it out. In this way, the fact of having to face the numerous expenses that an unoccupied property generates is eliminated and, at the same time, access to housing for other people is favoured.
  •  If renting is not viable, it is advisable to visit the house regularly to clean the dirt that accumulates, empty the letterbox or water the plants that have been strategically placed on the balcony or terrace. Similarly, it is advisable to leave the blinds slightly raised to give the impression that people are inside.
  • If it is not possible to visit the house frequently, neighbours can be advised to keep an eye out for any strange movements or noises in the house. As a general rule, the flats most likely to be occupied are those in blocks where hardly anyone lives.
  • Install a special heavy-duty door to prevent outsiders from entering the property. This type of door is made of metal materials and has different systems that make it almost impossible to open without a key.
  • Alarm systems are also a solution to prevent squatters. You can choose to install a video-surveillance system to monitor movements at the entrance and inside the house at all times, as well as install an alarm system that starts sounding when it detects the access of an intruder and alerts the police.
  • If the flat to be prevented from squatting is located in a community of neighbours, it is advisable for the community to have a doorman or caretaker. This figure can prevent the entry of people from outside the building and thus avoid the occupation of empty flats.
  • It is advisable never to publish your every move on social media. The information shared on these platforms can be extremely valuable for certain people looking for a property to occupy.
  • Avoid, as far as possible, hanging a “for sale” or “for rent” sign on the property, as this can be bait for squatters.

If, even when you follow these tips to avoid squatters, the house is inhabited by squatters, the cost of evicting them may vary depending on whether you have to go through a lengthy legal procedure or, on the contrary, it is quick, as mentioned above, and it will also be necessary to repair any damage that may have been caused. Although a home insurance policy is always an extra precaution, in these cases even more so, especially if it includes specific coverage for surveillance and urgent protection, as well as for repairs and renovations.

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