Squatting in Spain: Trespassing vs. Usurpation in Spanish Law

🇪🇸 Read the original in Spanish

The unauthorized occupation of real estate is one of the phenomena that generates the most social, political, and legal debate in Spain. In colloquial language, the term "okupación" (squatting) is frequently used in a generic way, which generates enormous confusion among property owners and the general public, especially among foreign residents who are not familiar with the Spanish legal system. However, the Spanish Penal Code distinguishes strictly between two criminal offenses with radically different consequences, penalties, and eviction procedures: allanamiento de morada (trespassing/breaking and entering) and usurpación (usurpation/squatting). Understanding this difference is crucial, as the speed with which the Fuerzas y Cuerpos de Seguridad del Estado (State Security Forces and Bodies) can act to restore possession of the property to its rightful owner depends entirely on it.

The Thin Red Line: Trespassing vs. Usurpation

To understand how the Spanish legal system protects property and possession, we must turn to the Penal Code (approved by Ley Orgánica 10/1995 [Organic Law 10/1995]). The key to differentiating both crimes does not lie in whether the owner has one or several houses, but rather in the legal concept of "morada" (dwelling/home).

The Crime of Trespassing: Allanamiento de Morada (Art. 202 CP)

Article 202 of the Código Penal (CP - Penal Code) regulates the crime of allanamiento de morada. It is committed when a private individual, without living in it, enters another person's dwelling or remains in it against the will of its inhabitant.

• What is a "morada"? The Tribunal Supremo (Supreme Court) defines it as the closed and delimited space in which an individual develops their private life, their privacy, and that of their family.
• First and second homes: It is fundamental to clarify that *both the primary residence (habitual home) and the second residence (holiday home, weekend house, etc.) have the legal status of a morada**. It does not matter if the owner is traveling, working, or if they only use the house in summer; as long as the property is furnished, has active water and electricity services, and is intended for the residential use of its owner, it is a morada*.
• Severity and penalties: Because the constitutional right to the inviolability of the home (Art. 18.2 of the Constitución Española [Spanish Constitution]) is being protected, the penalties are severe. The basic offense punishes the perpetrator with prison sentences of 6 months to 2 years. If the act is carried out with violence or intimidation, the prison sentence rises from 1 to 4 years along with a fine of 6 to 12 months.

The Crime of Usurpation of Real Estate: Usurpación (Art. 245 CP)

Usurpation, regulated in Article 245 of the Penal Code, refers to what is popularly known as a "kick in the door" in empty, abandoned, under-construction properties, or those owned by banking entities and investment funds that do not constitute anyone's morada.

• Usurpation with violence or intimidation (Art. 245.1 CP): Anyone who occupies, without due authorization, another person's real estate using violence or intimidation will be sentenced to a prison term of 1 to 2 years, in addition to the penalties incurred for the violence exerted.
• Peaceful usurpation (Art. 245.2 CP): This is the most common scenario. It occurs when someone occupies, without authorization, another person's real estate, dwelling, or building that *does not constitute a morada**, or remains in them against the will of the owner. As it is a minor offense (delito leve*), the penalty is solely a fine of 3 to 6 months. Since the inviolability of the home is not at stake, the legal protection is lower and eviction timeframes tend to drag on significantly.

Practical Step-by-Step Procedures in the Event of an Illegal Occupation

If you find yourself in the painful situation where your property has been occupied, acting quickly and calmly is decisive. These are the legal steps you must strictly follow:

1. Verification and gathering of evidence: Confirm the situation without confronting the occupants. Take photographs or videos from the outside if possible, speak with neighbors to find out when they entered, and make sure you have your property deed (escritura de propiedad), a nota simple (land registry certificate) from the Registro de la Propiedad (Property Registry), and your identity documents on hand.
2. Immediate report: Go urgently to the nearest Policía Nacional (National Police) station, Guardia Civil (Civil Guard) barracks, or the Juzgado de Guardia (Duty Court). Do not let hours slip by. It is vital to provide the documentation proving you are the owner and, if it is your first or second home, emphasize that it is your morada so that it is processed as allanamiento.
3. Request for an urgent precautionary eviction measure: Through your lawyer in the criminal complaint, or through the civil procedure of the Ley de Enjuiciamiento Civil (LEC - Civil Procedure Act), request the immediate precautionary measure of eviction (under Article 13 of the Ley de Enjuiciamiento Criminal [Criminal Procedure Act]). If it is allanamiento de morada, the prosecution and judges usually authorize immediate police expulsion without waiting for a trial.
4. Proof of ownership in court: If you opt for the civil route (the "express eviction" for individuals and non-profit entities), once the lawsuit is filed, the court will notify the occupants so that they can provide, within a period of 5 days, the title justifying their possession (for example, a rental contract). If they do not present it, the court will order an immediate lanzamiento (eviction/repossession date).
5. Execution of the eviction: Once the judicial eviction order is obtained, a judicial commission accompanied by police forces and a locksmith will go to the property to physically recover possession and change the lock.

Key Deadlines, Costs, and Figures You Must Know

In occupation processes, time and financial costs play a crucial role. Here we break down the most relevant figures of the Spanish legal system:

• The first 48 hours (The urban myth): There is no law in Spain that mentions a 48-hour deadline to be able to evict a squatter without a court order. The police can carry out an immediate eviction at any time (whether 2 hours or 5 days have passed) if a flagrant crime of allanamiento de morada is being committed. If it is a usurpación (empty apartment) and the occupants have already established their "home" there (they have their belongings, they have changed the lock), the police will need judicial authorization, regardless of the time elapsed.
• Response period in civil proceedings: Following the reform of the Ley de Enjuiciamiento Civil, occupants have a period of 5 business days to present a title justifying their stay. If they fail to do so, an eviction order is issued with no possibility of appeal.
• Average duration of proceedings:
• Allanamiento de morada (Criminal route): Can be resolved in a matter of hours or a few days through police intervention if it is flagrant, or in 1 to 3 weeks through a judge's precautionary measure.
• Usurpación (Criminal route): Can be delayed between 6 and 18 months due to the backlog in the juzgados de instrucción (investigating courts).
• Verbal eviction trial (Civil route): The average in Spain ranges between 6 and 12 months to achieve the actual lanzamiento.
• Estimated financial costs for the owner:
• Lawyer (Abogado) and Court Procurator (Procurador) fees: Between €800 and €2,000 depending on the complexity.
• Emergency locksmith for the eviction: Between €150 and €300.
• Repair of damages to the property: Variable, but the average damage ranges between €1,500 and €6,000.

Practical and Real-Life Examples of Application

Example 1: The case of Pierre's second home (Allanamiento de morada)

Pierre, a French citizen, owns a holiday apartment in Dénia (Alicante) valued at €180,000. He only goes there in summer and at Christmas, but the flat is furnished, has active electricity, and his personal belongings are there. In October, strangers force the lock and move in. A neighbor alerts Pierre, who flies to Spain and immediately files a report, providing his deeds.

As it is a second residence, Spanish jurisprudence classifies it as allanamiento de morada (Art. 202 CP). The police, under the direction of the Juzgado de Guardia, verify that it is Pierre's morada and proceed to the immediate eviction and arrest of the occupants within 24 to 48 hours, without needing to wait for a long trial.

Example 2: María's inherited and empty flat (Usurpación)

María inherits an old flat in Madrid that has been uninhabited for 3 years, without furniture, with utilities cut off, and on sale for €120,000. A group of people break the door chain and settle inside peacefully. María reports it a week later after finding out from the community of owners.

As it is an unoccupied property that does not constitute anyone's morada, the crime committed is peaceful usurpation (Art. 245.2 CP). The police cannot evict them immediately because the occupants have already established their de facto home there. María must initiate a criminal or civil judicial process. The eviction is delayed by 10 months, during which María stops receiving potential rent and must pay community fees and the IBI (property tax), adding up to estimated losses of €4,500.

Mistakes You Must Avoid

If you discover that your property has been occupied, making a mistake out of desperation or anger can turn you, the owner, into the criminal in the eyes of the law. Avoid at all costs:

• Cutting off water, electricity, or gas supplies: If you cancel or cut off the utility services of the occupied property, the occupants can report you for a crime of coacciones (coercion/harassment - Art. 172 of the Penal Code). Jurisprudence considers this to be a disproportionate measure of force to disrupt the lives of those living there, even if they are doing so illegally.
• Changing the lock on your own: If you take advantage of a moment when the squatters have gone out to enter, change the lock, and block their entry, you will be committing a crime of realización arbitraria del propio derecho (taking the law into your own hands - Art. 455 CP) or even a crime of allanamiento if they had already established their de facto morada there.
• Entering by force or threatening the occupants: Accessing the property to confront them or making physical or verbal threats can lead to criminal charges against you for trespassing, threats, or assault, which will immediately freeze the eviction process of your property.
• Hiring dubious eviction companies: Resorting to companies that use methods of coercion, violence, or access control that violate the law can make you civilly and criminally liable as an instigator of their crimes. Always turn to legal professionals and lawful channels.

Frequently Asked Questions (FAQ)

Can the police evict squatters if more than 48 hours have passed?

Yes, of course. The 48-hour limit is a popular myth with no basis in the Penal Code or the Ley de Enjuiciamiento Criminal. If the crime is allanamiento de morada (your habitual home or your second home), the police can act and evict at any time, as the crime of trespassing continues to be committed flagrantly and continuously every minute the usurpers remain inside your private space.

What happens if the squatters present a fake rental contract?

This is a very common tactic to delay the process. If they present a fake contract, the police cannot decide on the spot whether it is authentic or not, so they must refer the matter to the judge. However, your lawyer will immediately request an expert handwriting analysis or verification of security deposit (fianza) and rent payments. If the forgery is proven, the squatters will also face charges for falsedad en documento privado (forgery of a private document) and fraud.

Does Spanish law protect the squatter more than the owner?

Spanish law very strictly protects the constitutional concept of "domicilio" (inviolability of the home). The problem lies in the fact that, once a squatter enters an empty property (which is not a morada) and manages to establish their daily life there, that space legally becomes their "de facto home". To protect that space from arbitrary entries, the law requires a judge to order the eviction, which slows down the process due to the backlog in the administration of justice, not because the law seeks to protect crime.

Do I have to keep paying the mortgage and taxes while the house is occupied?

Unfortunately, yes. Illegal occupation does not exempt the owner from their financial and tax obligations. You must continue to pay the mortgage, the Impuesto sobre Bienes Inmuebles (IBI - Property Tax), rubbish collection fees, and community of owners fees. Non-payment of these concepts could lead to penalties or foreclosure actions against your assets. However, in the subsequent criminal or civil ruling, you can legally claim these amounts as damages, although the financial solvency of squatters is usually non-existent.

In Summary

• *The key is the morada: Trespassing (allanamiento de morada* - first and second homes) is punished with prison sentences of up to 4 years and allows for immediate police eviction.
• Usurpation is for empty properties: The peaceful occupation of properties that do not constitute a morada is a minor offense punished only with a fine, and its judicial eviction is much slower (6 to 18 months).
• Report it immediately: In the event of an occupation, go to the authorities within the first hours, providing deeds and utility bills to prove it is your morada.
• Do not take the law into your own hands: Cutting off the electricity, changing the lock, or threatening the occupants will turn you into the accused for crimes of coercion or taking the law into your own hands.
• The civil route is a great alternative: For empty properties owned by individuals, the civil "express eviction" procedure offers a requirement period of just 5 days to speed up the repossession.

General legal information, not personalised legal advice. For your specific situation, ask your question for free at AbogadoAI — answers grounded in Spanish law (BOE), in English.

This is general information, not legal advice. Verify on the BOE or consult a lawyer for your specific case.