In Spain ilegal occupation of Real Estate is a controversial issue.
You surely have heard the term “okupa” but, what kind of “okupas” are there? What does it really mean?
There most talk-about types are two:
A) When someone breaks into an inhabited house with no title or right to do so
This is the most feared and commented one by public opinion. In this case, we would be dealing with the criminal offence by breaking and entering into other people’s homes, which is provided in article 202 of the Spanish Criminal Code.
For this crime to be appreciated, there’s need to be lack of consent from the person who lives in the occupied property and that the domicile constitutes the holder’s habitual dwelling or a second residence.
In these cases, we must notify the Police as son as posible, for them to: 1) get in, 2) evict, and 3) return the dwelling to the holder. You have probably heard of a 48-hour maximum period in which the police can intervene, but there is no legal provision or case law that states that this is the maximum period in which the police can intervene.
Other examples of breaking and entering are when the landlord enters his tenant’s home without the tenant’s consent. Also when, having granted the use of the dwelling to one partner, the other ex -partner enters the dwelling without consent.
B) When someone breaks into an not-inhabited dwelling that he does not own in order to live there and without a title which allows him/her to do so.
Although this scenario is not the most feared one by citizens, it’s very common.
As it is carried out in an uninhabited dwelling, it would be a different tyoe of criminal offence (less serious). This would be an offence of usurpation as defined in the art. 245 of the Spanish Criminal Code.
Depending on whether it is carried out peacefully or with violence, there are different penalties provided.
In these cases the Police may act depending on whether or not there is flagrancy.
Flagrancy shall exist when the Police ‘catch’ the illegal entry at that moment, or a few moments later, which has not given the occupant time to make that place his or her home. For example, there will be flagrancy when the security alarm goes off, when a neighbour has alerted to the entry at that time, etc.
Another very common scenario, even though it’s not considered as “okupa”, is the example of the tenant who stops paying rent and does not want to leave.
While the two previous cases would be dealt with by the criminal courts, this case should be dealt with by the civil courts as it is a breach of contract because the tenant has stopped paying the rent agreed with the landlord.
The solution to this problem is to file an eviction lawsuit in the Civil Courts of the competent judicial district, as soon as posible. The claim for unpaid rent may be joined in the same proceedings.
