How to deal legally with the illegal occupation of a building
Supreme Court magistrate Vicente Magro has published ‘Cómo afrontar jurídicamente la ocupación ilegal de un inmueble’. The book deals with the serious social problem that exists around the illegal occupation of housing, which has come to saturate the courts, and the different ways of dealing with it on the part of the affected owners.
Royal Decree 11/2020 and Law 12/2023 on Housing
In the magistrate's opinion on the Royal Decree 11/2020 that regulates the eviction procedure, the deadlines for recovering squatted housing should not be delayed, it is not the fault of the owners that society lacks housing, nor the slowness of the administration in finding social housing that can solve the problem. The decree has undoubtedly harmed many owners on whom the responsibility for solving the problem of access to housing should not fall.
Not even the Housing Law 12-2023 establishes the suspension of the eviction in cases of squatted housing (as it does in the case of non-payment of rent in cases of vulnerability). This transfer must be carried out within a week, after which the eviction and handover of possession to the owner of the property will take place.
The right to housing of citizens and the need for housing, according to jurisprudence, can never be an exoneration from criminal liability of squatters. The Law 12/2023 on Housing in article 9 establishes the need to respect other people's homes and the impossibility of illegitimate intrusions into them by citizens, which must be respected absolutely and without exceptions.
The government's responsibility in the ‘squatting’ problem
The author of the book thinks that the government should be aware of the need to protect many property owners who are being seriously harmed by squatting, and to respond urgently to the need to recover the affected properties.
The real problem lies in the government's failure to take responsibility for housing vulnerable people in social housing and the consequences of this failure to act are being passed on to landlords.
Breaking and entering and property encroachment
Vicente Magro distinguishes between two forms of illegal occupation of housing: breaking and entering and trespassing.
The breaking and entering is the unlawful entry into a ‘dwelling’, i.e. any property where we have furniture to be used for habitation and the electricity, water and heating services are connected to the mains. Jurisprudence does not require registration, nor that it is a tax domicile. It is not necessary for the dwelling to be permanently inhabited, it is allowed to be a transitory or sporadic residence.
The usurpation of real estate would be the other cases in which an empty dwelling is occupied.
In the author's opinion, a reform would be necessary to ensure that the criminal procedure for breaking and entering and for the usurpation of property is the same and that immediate expulsion is carried out, no later than 72 hours after the illegal occupation of the property, by means of an immediate judicial decision for expulsion and handing over possession to the owner.
The case of a co-owner accessing a property without the permission of the other co-owners is not considered a criminal act of illegal occupation of a property but a problem of a civil nature and therefore requires a civil claim before the court of first instance.
The most important thing is the request for an urgent injunction to evict the squatters.
In the event of a break-in , the landlord must immediately prove his status as landlord to the judge. This can be done through documents in your email, on accredited websites of your electricity, water, etc., or with a certificate from the land registry that guarantees the ownership of the occupied property.
But the most important thing, apart from immediately reporting the situation of illegal occupation to the duty judge through a lawyer, is to request an urgent precautionary measure of expulsion of the squatters, based on article 13 of the criminal procedure law, which allows the immediate recovery, within a maximum period of 72 hours, of the occupied property, trying to state that what is relevant in the case is the recovery of the property and not the penalty that should correspond to the squatters.
Vicente Magro insists on the importance of the owner's speed in denouncing the squatters. Without a complaint from the landlord, the community of neighbours is handicapped when it comes to denouncing and intervening in the eviction procedure. It could only do so if the squatters carry out annoying, prohibited, noxious, harmful, unhealthy or dangerous activities.
In the case of rented dwellings, tenants have the same right as landlords to report or sue for illegal occupation, trespassing or usurpation, as they are also deprived of occupancy of the property.
A tenant does not leave a property after his rental contract. Squatting.
Vicente Magro also deals in his book with the legal definition of the concept of ‘inquiocupación’. When a tenant is renting a property and does not leave it at the end of the contract, it is not considered illegal occupation but rather a breach of contract and must be reported to the judge of first instance in civil and not criminal proceedings, as the agreed term has expired. The Housing Act in cases of vulnerability raises the need for rehousing with the delay in the recovery of the property by the owner that this entails.
Police action in the face of illegal occupation
The author also points out that in some localities such as Villajoyosa, Valencia, and Santa Coloma, Barcelona, there is a regulation that allows the local police to evict tenants within a week.
In these cases, in the event of flagrancy, i.e. when the delinquents are caught in the act of entering the home, normally by means of an alarm system, the police can act immediately and evict the occupants. This protocol is also made possible by the commitment of all neighbours to notify the police in the event of detecting any illegal entry into a home.
In the magistrate's opinion, the ideal would be a comprehensive law that precisely defines the concept of ‘flagrancy’ and allows the police to know when they can enter a home without a warrant.