Squatters in your second home in Spain. What to do now?

During the corona crisis and the related travel restrictions, there was a noticeable increase in media attention for the problems of second home owners, especially in Spain, whose properties were occupied by squatters. Getting these people out of your house or flat is not as easy as it is often thought. In this blog post, we will take a closer look at the rules that apply in Spain in this respect.

Squatting of dwellings is usually a criminal offence in Spain as well

As in most countries, illegal occupation of another’s property is punishable in Spain if the occupier has committed a criminal offence in order to get into the house. Two offences qualify: burglary (articles 202 or 203 of the Spanish criminal code) or usurpation. (article 245). Burglary is punishable by imprisonment from 6 months to 4 years. Usurpation is the intentional and unauthorised occupation of another person’s property or dwelling therein against the owner’s will. This crime is punished with a fine of three to six months.

Most cases of “squatting” of a dwelling involve one of these two offences and the victim can then turn to the police and the public prosecutor’s office. However, it must be borne in mind that the police cannot simply evict the occupiers. For example, for the crime of usurpation, it must be clearly proven that it could not be inferred from the owner’s behaviour that the occupation had been implicitly tolerated for some time. Also, there is not always “burglary” in the legal sense, for example, when a dwelling is not regularly used as a primary or secondary residence but has been unoccupied for some time. In Spanish law, the term “burglary” is strongly linked to intrusion into another person’s private sphere, i.e. housebreaking. This is not the case, for example, when squatting an uninhabited house that has been empty for some time. In that case, there may be “usurpation”.

Caught in the act and the so-called “48 hour rule”

In principle, the police cannot evict the squatters without a court order. Exceptionally, however, the police can do so if they are caught in the act. According to the case law of the Spanish Court of Cassation, being caught in the act applies in a number of cases, such as when the facts are observed directly by the police, when neighbours report to the police that people are entering a house by breaking a window or a door, or when an alarm centre is informed that a burglar alarm has been activated in the building.

In some media, reference has been made to a so-called “48-hour rule” in this context, but this rule does not exist at all. In Spanish law, being caught in the act has nothing to do with respecting a deadline for reporting the burglary to the police. Of course, it is important to react quickly, but it is not the case that going to the police within 48 hours is a guarantee that the squatters will be evicted without the need for a court order. Conversely, a report to the police after, say, three or four days can still give rise to immediate eviction provided the perpetrators are caught red-handed by neighbours, passers-by, caretakers, private security guards or others and evidence of this can be produced.

Not every illegal occupation of a home is a police matter

Not every illegal occupation of a dwelling involves the commission of a criminal offence. It is also possible that the person occupying your property in Spain had no intention of committing a crime. This may be the case, for example, in a dispute over the end of a rental agreement, where the tenant of your Spanish property believes that you, as owner, had no right to end the rental. In this case, the tenant is not committing a crime and you cannot go to the police. The only way to get your tenant out of your property is then to petition the civil court. At this point, you have the choice between four different civil procedures, some of which lead to concrete results more quickly than others. One of these procedures, which was amended by an Act of 2018, allows the owner to repossess his or her home immediately after obtaining a first instance ruling. Thus, the other party cannot stay in the property by filing an appeal against that judgment. This is why this procedure is currently the most widely used in the event of a classic case of occupation by squatters.

Practical guidelines for house owners in Spain

In order to determine whether or not to contact the police or the Guardia Civil, it is advisable to consult a lawyer as soon as you are informed that your property has been squatted. This lawyer will be able to suggest the appropriate legal strategy to get the case resolved as quickly as possible. The services of a lawyer are especially necessary for those who do not speak Spanish. In order to find a suitable Spanish lawyer, one can turn to TWERES.

If you have to go to the civil court, the assistance of a lawyer and a ‘procureur’ is obligatory. A prosecutor is the person who assumes the responsibility to communicate with the court on behalf of the client. A procurator is attached to one particular court where he or she is authorised to communicate with the court on behalf of his or her clients. In Spain, a procurer is still compulsory.

The Spanish government itself advises owners of squatted houses to file a complaint quickly. For this purpose, they make a mobile application “Alertcops” available. One can download the app through Google Play and through the App Store, then register and confirm this after receiving an SMS. And once properly installed, one can try out the smartphone app through the test or ‘Alerta de prueba’. At that moment a text message is sent to the people behind AlertCops, and if everything works well, you receive the message ‘The system can process your alerts’ or in Spanish ‘El sistema puede procesar sus alertas’. AlertCops can be used not only in Spanish but also in English, German and French.

It is also important to be able to present a recent proof of ownership in case of a complaint about a squatted house. This can easily be obtained online via the government website https://www.registradores.org and costs approximately EUR 10. In addition, it is best to enclose as much documentary evidence as possible, such as statements from neighbours, the caretaker, the security company, e-mails or text messages that have informed you of the occupation, etc. This way, it is possible to obtain a conviction for squatting. This way, there is a chance that there is a “catch in the act” and the squatters can be evicted by the police without the intervention of a judge.

If this still fails and the court has to be involved, a lawyer is needed, as already indicated. Despite the change in the law in 2018, legal proceedings still take a long time because the Spanish justice system is also rather slow.

Finally, it is therefore obvious that the Spanish authorities recommend preventive measures, such as installing security locks, a good alarm system, preferably permanently connected to a security company, web cameras and notifying a neighbour in case of long absence.

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TWERES launches petition to add necessary trip by owners to their second home to the list of essential travel

With a petition on its website, the interest group TWERES is once again mobilising owners of second homes abroad to act against the ban on going to their property. The association says it has been inundated with angry reactions from people who do not understand why they have to wait until 19 April, or perhaps even longer, to cross the border with their car and drive to their second home. They are particularly angry because they have to leave their property unattended for three months and cannot even take urgent measures to prevent, for example, frost damage, water damage or theft. The association is now collecting signatures around the demand to add “necessary trips of owners to their property abroad to carry out urgent maintenance or repair works” to the list of essential trips in the annexes of the applicable ministerial decree.

On 6 March, the consultative committee of the federal and regional governments extended the ban on non-essential trips to and from the Belgian territory until 18 April. The list of “essential journeys” remains unchanged. Travel to and from Belgium remains permitted for professional reasons, imperative family reasons, humanitarian reasons, etc., but also to care for animals, to move house or for urgent repairs to ensure the safety of a vehicle.

By petitioning the Council of State, the non-profit association TWERES and four owners of second homes abroad tried to challenge the existing wording of the ban on non-essential travel. In its ruling of 2 March, the Council refused to rule on the owners’ question because its extreme urgency was not sufficiently demonstrated.

“Our members are not simply resigning themselves to this,” say the TWERES directors. “They understand that the responsible ministers want to limit as much as possible the trips to and from our country as long as the control possibilities and safety measures are not yet sufficiently developed. What particularly bothers them is the arbitrary list of which trips are qualified as “essential” in the ministerial decree. Urgent work on a house is often just as urgent and requires just as much a visit on site as caring for animals or carrying out repairs on a vehicle.”

TWERES further argues: “There is also no weighing up with this list that takes into account contamination risks. There is a huge lack of understanding for the fact that an owner is prohibited from driving his car from his garage at home to his mobile home in Zeeland or his cottage in a remote village in the Dordogne. There is even less understanding for the fact that this ban remains in place, even if urgent works have to be carried out there. Also, the fact that the date for relaxing the travel ban is first promised but then postponed again causes resentment and frustration.”

With all owners of a second home abroad signing this petition, TWERES now asks the competent ministers to add necessary trips of owners to their home abroad to carry out urgent maintenance or repair worksto the list of “essential”l trips in the annexes of the applicable Ministerial Decree of 28 October 2020 on urgent measures to limit the spread of the coronavirus COVID-19 (as last amended by MB of 7 March 2021).