Squatting in Spain: Trespass vs. Usurpation Explained

🇪🇸 Read the original in Spanish

The unauthorised occupation of properties has become one of the greatest concerns for homeowners in Spain, often fueled by terminological confusion between very different legal concepts. When a citizen or an expat resident faces the loss of possession of their property, they usually resort to the generic term "squatting" (okupación). However, Spanish legislation does not actually use this word in its Código Penal (Criminal Code). Instead, the legal system draws a sharp distinction between the crime of allanamiento de morada (trespassing/breaking and entering) and the crime of usurpación (usurpation/illegal occupation of uninhabited property). This technical distinction determines everything from the speed of police intervention to the applicable penalties. Understanding these differences, through the lens of current legislation and recent reforms, is the first crucial step to protecting your assets and acting with maximum legal efficiency.

1. The Legal Framework: What is each concept according to the Criminal Code and the Civil Code?

To understand how Spanish law protects property and possession, we must look to the Código Penal (CP / Criminal Code), the Código Civil (CC / Civil Code), and procedural laws. The cornerstone of this entire matter is not the right to property itself, but the constitutional concept of the inviolability of the home (Article 18.2 of the Constitución Española / Spanish Constitution).

Trespassing — Allanamiento de Morada (Article 202 of the Criminal Code)

The crime of allanamiento de morada is committed when a private individual, without living in it, enters the home of another (morada ajena) or remains in it against the will of its inhabitant.

• What is a "morada" (home)? The jurisprudence of the Tribunal Supremo (Supreme Court) defines it as the closed and delimited space in which a person develops their private and family life, their privacy.
• Second homes: It is vital to highlight that second homes (the beach or mountain house used only on holidays or weekends) *are considered a morada** for criminal purposes. This has been ratified by the Fiscalía General del Estado* (Attorney General's Office) in its Instruction 1/2020, understanding that privacy is developed in them when they are inhabited, even if only temporarily.
• Penalties: The basic offense under Article 202.1 of the CP punishes this crime with prison sentences of 6 months to 2 years. If the act is carried out with violence or intimidation (Article 202.2), the penalty rises to 1 to 4 years in prison and a fine of 6 to 12 months.

Usurpation — Usurpación de Inmuebles (Article 245 of the Criminal Code)

The usurpación de inmuebles, technically known as the peaceful occupation of uninhabited properties, occurs when someone occupies, without due authorisation, another person's property, home, or building *that does not constitute a morada***, or remains in them against the will of the owner.

• Which properties fall under this? Empty flats owned by banks, abandoned buildings, completed homes that have never been lived in, or commercial premises without activity.
• Penalties: If there is no violence or intimidation (Article 245.2 of the CP), the crime is punished only with a fine of 3 to 6 months. If carried out with violence or intimidation (Article 245.1), a prison sentence of 1 to 2 years is imposed, in addition to the penalties incurred for the violence exerted.

The Role of the Ley de Arrendamientos Urbanos (LAU) and the Housing Law

The Ley 29/1994 de Arrendamientos Urbanos (LAU / Urban Leasing Act) regulates rental contracts. When a tenant stops paying rent, they are not a squatter in criminal terms, but a defaulting tenant (arrendatario moroso). Their initial possession was legitimate (they had a contract). This scenario is governed by civil law through a desahucio por falta de pago (eviction for non-payment).

Meanwhile, the recent Ley 12/2023 por el derecho a la vivienda (Housing Right Act) has introduced modifications to the Ley de Enjuiciamiento Civil (LEC / Civil Procedure Act), requiring additional procedural requirements for grandes tenedores (large property holders — owners of more than 5 or 10 residential properties, depending on the autonomous community) before starting eviction processes, forcing them to prove whether the occupants are in a situation of economic vulnerability.

2. Key Differences: Trespassing vs. Usurpation vs. Non-Payment of Rent

To quickly visualise the legal scenario, we analyse the differences in this comparative table:

| Criterion | Trespassing (Allanamiento de Morada) | Usurpation (Usurpación) | Non-Payment of Rent (Defaulting Tenant) | | :--- | :--- | :--- | :--- | | Type of property | First or second residence (morada). | Empty, unused property, commercial premises (not a morada). | Property rented through a lease agreement. | | Legal route | Criminal (preferred and urgent). | Criminal (slow) or Civil. | Civil (Eviction verbal trial / Juicio verbal de desahucio). | | Police intervention | Immediate (delito flagrante / flagrant crime, without a warrant). | Requires a judicial eviction order (except in very rare exceptions). | Impossible without a final court eviction ruling. | | Severity of penalty | Prison (6 months to 4 years). | Financial fine (3 to 6 months) if without violence. | No criminal penalty (it is a civil dispute). |

3. Practical Step-by-Step Procedures in Case of Illegal Occupation

If you discover that your property has been occupied, the procedure varies drastically depending on the type of crime. Here is your legal roadmap:

Step 1: Identify the type of property and the time elapsed

Determine if the property is your morada (first or second residence) or an empty property. Although the urban myth says that after 48 hours you can no longer kick out squatters, the law does not establish any hourly deadline. The key is whether it constitutes your morada and if the crime is flagrant (is being committed at that very moment).

Step 2: File the complaint immediately

Go to the Policía Nacional (National Police) station, the Guardia Civil (Civil Guard) barracks, or the Juzgado de Guardia (Duty Court).

• Provide your title deeds (escrituras de propiedad), nota simple (property registry extract) from the Registro de la Propiedad (Property Registry), utility bills (electricity, water), and your empadronamiento (town-hall registration) to prove that it is your morada.
• If it is trespassing, explicitly request the medida cautelarísima de desalojo inmediato (urgent precautionary measure for immediate eviction) and restoration of possession (Article 13 of the Ley de Enjuiciamiento Criminal / Criminal Procedure Act).

Step 3: The civil route (Alternative for usurpation or non-payments)

If the property was empty (usurpación) and the criminal route is dragging on, or if it is a case of non-payment of rent, you must file a civil eviction lawsuit in the Juzgados de Primera Instancia (Courts of First Instance) of the place where the property is located.

• For usurpation against private owners, the "express eviction" (desahucio exprés) procedure is used (Article 250.1.4º of the Ley de Enjuiciamiento Civil). The court will require the occupants to provide a title justifying their possession within 5 days. If they do not present it, the court will order the immediate handover of the property.

Step 4: Execution of the eviction

Once the judgment or eviction order is obtained, a date and time will be set for the lanzamiento (eviction execution). A judicial commission, aided by the Fuerzas y Cuerpos de Seguridad del Estado (State Security Forces) and a locksmith, will intervene in this act to physically regain control of the property.

4. Practical Examples with Real Figures

Example 1: The trespassing of María's second home

María owns an apartment in Dénia (Alicante) which she uses during the summer and some weekends. The market value of the flat is 220,000 €. One weekend in May 2024, neighbours warn her that lights are on and music is playing. Strangers have forced the lock and settled inside.

• Resolution: Since the apartment in Dénia is María's second residence, legally it is her morada. María files a complaint on Monday morning, providing water and electricity bills that prove the use of the property. The police, noting that it is a flagrant crime of allanamiento de morada, proceed to the immediate eviction and arrest of the occupants within 24 to 48 hours, without needing to wait for a long civil trial. The occupants face prison sentences of up to 2 years.

Example 2: The usurpation of a flat inherited by Carlos

Carlos inherits a flat in Madrid from his aunt that has been closed and up for sale for more than 2 years. It has no furniture, utilities have been disconnected, and the flat is valued at 180,000 €. A group of people break the door and move in to live there.

• Resolution: As it is an uninhabited and unused property, it is not a morada. This is a crime of usurpación (Article 245.2 CP). Carlos reports it, but the police cannot evict immediately because there is no flagrant crime against the inviolability of the home. Carlos must start a civil express eviction procedure. The judicial process takes 8 months. During this time, Carlos loses an estimated rent of 850 € per month (a loss of 6,800 €), in addition to having to pay lawyer and court agent (procurador) fees (1,500 €) and the repair of damages caused to the property, valued at 3,200 €.

5. Mistakes You Must Avoid

Making a tactical or legal error out of desperation can transform the owner (the victim) into the accused party of a criminal offense. Strictly avoid the following:

• Cutting off electricity, water, or gas supplies: Even if the bills are still in your name, if you cut off the utilities to "starve out" the occupants, they will report you for a crime of coacciones (coercion under Article 172 of the Código Penal). Jurisprudence considers water and electricity to be basic necessities, and their deliberate disconnection constitutes an illegal measure of force.
• Changing the lock on your own: If you access the property when the occupants are out and change the lock, you will be committing a crime of realización arbitraria del propio derecho (unlawful recovery of one's right under Article 455 of the CP) or even trespassing (if they had already established their de facto residence there).
• Hiring shady "squatter eviction" companies: The use of force, intimidation, or harassment to expel occupants is illegal. Any company you hire must act strictly within the law (friendly mediation or access control without coercion); otherwise, you will be held liable as an instigator or necessary co-operator of their crimes.
• Delaying the complaint: In the case of allanamiento de morada, time is of the essence. The longer you take to report it, the easier it will be for the occupants to claim to the police that the space is already their habitual residence and that they have established their morada there, which will force the matter into the slow civil court system.

6. Frequently Asked Questions (FAQ)

Is it true that if 48 hours pass, you can no longer evict a squatter?

No, this is an absolute myth. Spanish criminal law does not mention any 48-hour limit. If the property constitutes your morada (first or second residence), the crime of trespassing is continuous, and the police can intervene and evict at any time the flagrancy of the crime is verified. In the case of empty properties (usurpación), the difficulty of immediate eviction lies in the need for a judge to assess whether the right of possession has been violated, not in a specific hourly timeframe.

What happens if the squatter presents a fake rental contract?

This is a common fraud. If the occupants present a fake rental contract to simulate legitimate possession, the police usually refrain from evicting on the spot to avoid making a mistake, referring the case to the Juzgado de Guardia. In court, your lawyer must immediately request a handwriting expert test or prove the falsity of the document (for example, by showing that the signatures do not match or that there are no transfers of the fianza (security deposit) or monthly rents of 900 €) to request a precautionary eviction for fraud and document forgery.

Who pays for the damage and utilities while the house is occupied?

The owner is obliged to keep paying the utility bills if they are in their name to avoid being reported for coercion. Once the property is recovered, the owner can legally claim the cost of the utilities paid, lost rent, and the cost of repairing damages from the occupants. However, in 95% of usurpation cases, the occupants declare themselves insolvent, meaning the owner ends up absorbing the entirety of the financial losses.

Does the new Housing Law protect squatters?

The Ley 12/2023 por el derecho a la vivienda introduces procedural obstacles for evictions, but these mainly affect civil processes for non-payment of rent or precarious occupation initiated by grandes tenedores (landlords with more than 5 or 10 urban residential properties). If you are a small owner (fewer than 5 properties), the requirements for prior conciliation and proof of vulnerability do not apply with the same rigidity, and under no circumstances does the law protect the trespassing (allanamiento de morada) of private individuals' homes.

7. In Summary

• Trespassing (allanamiento de morada) protects your first and second residence; it is a serious crime that allows for immediate police expulsion of intruders.
• Usurpation (usurpación) refers to empty homes, premises, or unused properties; the penalties are light (fines) and the eviction process is much slower.
• The non-payment of rent by a tenant is neither illegal squatting nor trespassing; it is a breach of contract resolved exclusively through civil courts.
• Taking matters into your own hands (cutting off utilities, changing the lock, or threatening) constitutes a criminal offense that can lead the owner to prison or heavy fines.
• Speed in reporting the crime and providing solid proof of ownership and use of the property are the key factors to accelerate the recovery of the property.

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.