Illegal occupation of property

Has your house been occupied? If so, continue reading.

What has happened to make the fear of squatters true and real? What do the courts do? What can they do? How did we get here?

The illegitimate occupation of real estate is a phenomenon that was intensified by the real estate crisis of the last years. Here, we are not dealing with evictions for non-payment of rent or mortgage payments.

There is no specific law that treats occupation, understood as usurpation of a property or as an alteration of possession. In view of this lack, the procedural law offers alternatives to the owner who has been prevented or disturbed from possessing the property. These options are both civil and criminal. The civil ones are regulated in article 250 of the Law of Civil Procedure (LEC) and the criminal ones in article 245.2 of the Penal Code (CP).

Civil Jurisdiction

In this sense, the 441 of the Civil Code (CC), establishes that the possession cannot be acquired violently when the holder opposes it.  Therefore, in the event of such resistance, in order to deprive another of possession, the assistance of the Judicial Authority must be requested.

Depending on which is the actual scenario, the Civil Procedure Law (LEC) includes in its article 250, different actions, among others:

• The action of recovery of the property after the end of the lease. 250.1.1 LEC
• The action of recovering the possession of a property/land, which had previously been assigned in precarious. In other words, ceded for use, without a specific term and without any consideration or payment (art 250.1.2 LEC)
• The actions that aim at the effectiveness of the registered rights in rem, against those who disturb their exercise. (Article 250.1.7 LEC and article 41 Mortgage Law). That is to say, those situations where there is discordance between the owner of the registry and the holder of a property or real estate.

Criminal Jurisdiction

On the other hand, Article 245.2 of the Criminal Code (CP) regulates what is known as the misdemeanor of usurpation of real estate. It states that the person who occupies a property without proper authorization will be punished with a fine of three to six months.

Thus, in order for there to be a crime of usurpation, the following elements must be present:

1. That the occupation of the property is carried out without violence or intimidation.
2. That the home or building does not constitute the domicile or habitual residence of the complainant. If it was the occupation of a habitual residence, we would be facing a crime of breaking and entering.
3. That it is occupied with the intention of permanence.
4. That the occupant does not have a title that legitimizes the occupation (in other case it is necessary to go to the civil route).
5. That the owner’s will be recorded as contrary to the occupation.
6. That the property is not abandoned, after an explicit requirement or, after knowing of the existence of a criminal procedure.
7. hat there is fraud. The occupant must be aware of the alienation of the property and the lack of title.

General appraisals of one and other options:

Common to both options, we have the judicial slowness processing of the procedures. According to data from the report that the General Council of the Judiciary made in 2016, we observe that:

1. The average duration of civil proceedings until a final judgment is handed down, exhausting all instances, is 28 months. This does not take into account the delays that may occur due to the incidents inherent in the processing of free legal aid cases. And, to these 28 months we must add another 6 more that, on average, takes the execution of the sentence.

2. The average duration of the criminal procedure until a final judgment is obtained is 18 months. This means that all instances have been exhausted, not to mention delays due to incidents in the processing of free legal aid cases. This period can be reduced by half in cases of minor offences. It is necessary to add other 4 months that, on average, it takes the execution of the sentence.

The criminal route, the most advantageous in general terms

In general terms, if the type, the criminal alternative, is present, it can be considered the most advantageous, therefore:

• Since it is a misdemeanor, the investigating judge is responsible for the investigation and trial, which shortens the time frame.
• It does not only punish the offender. It also entails civil liability, the restitution of the property to its owner or legitimate holder.
• Unidentified persons can be reported. The identification of the “ignored occupants” will be done by the police.

Inconveniences of the civil route

And the fact is that, in line with the above, when analyzing the civil route, we find certain inconveniences or disadvantages:

• The eviction is not immediate, it implies precautionary measures, which are exceptional “per se”.
• Their provisional execution, likewise exceptional, requires that the judgment be final and that no appeal be made to the contrary.
• And connecting with the firmness of the sentence, is important to note that the defendant does not need to upfront any amount  to appeal. As in the case of eviction for non-payment, which requires the appellant to be up to date with the payment of rent (449.1 LEC).

The reform of the Civil Procedure Law

As we said, to this date our legislation has not been adapted to the growing phenomenon of occupation.

However, at the end of April 2018, the first steps were taken towards achieving this goal. Thus, Congress approved the reform of the LEC, which regulates the colloquially known as “express eviction”. Again, we are facing a procedural patch and not a proper regulation to that effect.

The reform project benefits the housing of individuals, social entities and public administrations. So, it foresees the eviction in 20 working days by means of the following procedure:

(i) Begins at the request of the owner who requires the Court to make a previous notification to the illegitimate occupant.

(ii) Once this notification is received, the occupant must prove the possession by means of a legitimate title.

(iii) If there is no sufficient justification, the Court shall order the immediate delivery of the dwelling, within 20 working days

(iv) If the occupants do not respond to the request, the court shall order the surrender of the dwelling unit within 5 business days.

However, this procedure shall not apply to (i) evictions (ii) or to property owned by “large speculators. This term, according to our understanding, includes the so-called vulture funds and banks. Therefore, these “big speculators” will have to continue to resort to criminal proceedings.

Which leads us to wonder:

Why has access to this procedure been forbidden to certain legally constituted legal subjects?

Why, when faced with an occupation, can an individual or a company choose between resorting to express eviction or resorting to the crime of usurpation and a bank or investment fund has this choice vetoed?

If the objective is to protect private property (art.33.1 Spanish Constitution, EC) why does it veto the largest property holders?

Could it be understood that this reform affects the principle of equality set forth in Article 14 CE?

We do not have an answer to these questions, but in any case, it will be interesting to see the path of this law.

If this article has been of interest, we also suggest you to read the following article published on our website: The direct action of art. 1597 CC. (2020)