Illegal occupation of a home

Unfortunately, the illegal occupation of houses is occurring more frequently. It is a very complex issue given the current legislation and especially because of the delay of the courts in solving this problem. In our opinion the problem is not in the law itself but in the procedure, which complicates the quick resolution of these matters by the court.

Without entering into other types of considerations, the objective of the Squatters is to use the legal procedures that exist to lengthen as much as possible their illegitimate occupation of the property.

Given the illegal occupation of a home, its owner can choose two ways:

1.- The criminal procedure, based fundamentally on article 202 of the Penal Code, applicable to those dwellings that constitute the permanent residence of its owner or legal possessor, and according to which:

“The individual who, without legally inhabiting it, enters another's dwelling or remains in it against the will of its inhabitant, will be punished with a prison sentence of six months to two years.

If the act is carried out with violence or intimidation, the penalty will be imprisonment of one to four years and a fine of six to twelve months”

For its part, article 245.2 of the same Penal Code, mainly applicable to second residences or vacation residences establishes: “Whoever occupies, without due authorization, a property, dwelling or building of others that do not constitute a dwelling, or remains in them against the Will of its holder, will be punished with a fine of three to six months. "

This route perhaps is not very advisable for several reasons: Criminal proceedings, due to the different phases in which they are carried out and the different Courts that intervene, the one that investigates (called the Investigating Court- Juzgado de Instrucción) and the one that later judges (Criminal Court-Juzgado de lo Penal) they usually have a much longer duration than civil proceedings and, in addition, the change of the occupants of a dwelling is not infrequent, so having to address the complaint against a specific and determined person so that it can be judged, the procedure can lengthen even more by having to investigate almost permanently the identity of each occupant of the property, they even tend to “hire children” to introduce them into the house, which means that they cannot be criminally liable and this further lengthens the procedure, perhaps in the end to be forced having to go to the civil route. Therefore, in our opinion, the most advisable route is to go the other way that we will now see.

2.- That route is The Civil way. On June 11, 2018, law 5/2018 in relation to the illegal occupation of homes, which regulates a specific procedure to guarantee the possession of homes owned by individual owners, has been approved and the action is processed by the procedure of a verbal trial, which in theory should be faster because it is simpler.

This rule will only be applied in cases of illegal occupations that affect private individual owners, non-profit entities with the right to own it and public entities that are owners or legitimate holders of social housing to evict those who settle in other people's homes against the will of their owners, without having a rental contract or an assignment agreement that enables them to live in the house or apartment. Therefore, it will not be applicable to banks, savings banks, property owners resulting from foreclosures, etc.

Article 250 of the Civil Procedure Law (Ley de Enjuiciamiento Civil) indicates that the following demands or Court petitions will be substantiated by the verbal judgment procedure:

Section 2. Those that seek the recovery of full possession of a rustic or urban property, transferred precariously, by the owner, by who holds the right of use or any other person with the right to own said property.

Section 4. Those who seek summary protection of possession or possession of a thing or right by whoever has been stripped of them or disturbed in their enjoyment.

They may request the immediate recovery of full possession of a home or part of it, provided that they have been deprived of it without their consent, the individual who is the owner or legitimate owner by another title, the non-profit entities with the right to own it and the public entities that are owners or legitimate holders of social housing.

Section 7. Those that, urged by the holders of real rights registered in the Land Registry Office, demand the effectiveness of those rights against those who oppose them or disturb their exercise, without having a registered title that legitimizes the opposition or the disturbance.

If the plaintiff had requested the immediate delivery of possession of the home, in this act its occupants will be required to provide a title that justifies their possession situation.

Likewise, in order not to fraudulently prolong the procedure, the causes of opposition by the defendants are limited, establishing that it can only be based on the existence of sufficient title against the petitioner to own the home or on the lack of title on the part of the latter.

In any of the civil actions that are exercised, we must say that it is very rare for the Courts to agree as a precautionary measure to evict the occupant while the procedure is being processed, so that until the sentence that is handed down is final, it will maybe not be possible to regain possession in front of a squat. The problem is not that the property is recovered, which will happen, but the time that it will require, which acts for the benefit of the squatters.