Do you need to report an occupation?
The occupation of properties is a growing issue in some places in Spain. Knowing what to do in such a case is crucial, which is why we provide several tips based on the experience of legal and real estate experts, as well as the National Police Force.
What is Occupation?
In recent years, the number of reports of illegal occupations has nearly doubled, from 9,998 complaints in 2016 to 17,224 in 2021, the highest level in history, or 16,726 reports in 2022, showing a slight decrease compared to the previous year.
There are differences between the terms occupation, usurpation, and home invasion, as all refer to the unlawful use of someone else’s property.
Occupation is not a legal term per se, as it is not included in the Spanish Penal Code. It is simply a colloquial term used to describe the act of a person settling into a property that does not belong to them.
To initiate legal action, we need to determine whether the occupation is, in fact, usurpation or home invasion.
Usurpation of Property refers to the illegal occupation of an uninhabited property without the consent of its owner to turn it into the occupier’s habitual residence.
The penalty for this offense is a fine if the occupied property is not considered a home.
Home Invasion, on the other hand, refers to entering or staying in a property without the permission of the resident in an attempt to make it their own home.
In these cases, the established penalty is imprisonment.
Profile of the Occupier in Spain
Some occupations, as emerged from the “okupa” movement, are ideologically motivated, while others are carried out by criminal gangs, which worsen the situation by renting the property out to a third party. Other times, occupations are the result of rent arrears, precarious tenants, or economic necessity, among other scenarios.
The most common type of occupier in Spain is from mafioso organizations that specialize in usurping properties. Historically, occupations were often associated with social vulnerability, but today, although there are still occasional cases of social emergency, this is no longer the most common type of occupier.
Many of these properties belong to banks, financial institutions, or real estate groups aimed at the tourism sector.
How Long Does It Take to Evict an Occupier?
In Spain, it takes an average of 20.5 months to evict an occupier, from the procedures in First Instance Courts to the Provincial Courts, according to data from the General Council of the Judiciary (CGPJ).
In 2022, there were 16,726 occupation complaints reported, according to the Ministry of the Interior. From January to April 2023, the Civil Guard, National Police, Mossos, Ertzaina, and the Navarra Foral Police acted, reported, or took note of 5,266 cases of illegal occupations.
How to Act in Case of an Occupation?
In the event of an occupation, a procedure to evict the “occupiers” should be initiated, either through the criminal or civil route. If you report the occupation as it is happening, immediate action can be taken as it is considered a flagrant crime.
Criminal Route
The criminal procedure should begin by filing a complaint with the police, and if it can be proven that the people who have occupied the property have been there for less than 48 hours, the police can evict them without a court order. The 48-hour time frame is not explicitly stated in any legislation, but it is usually the recommended time in police protocols for treating it as a flagrant crime and preventing home invasion.
If more than 48 hours have passed since the illegal occupation, the complaint will be processed in the corresponding court for the commission of a usurpation crime if the property was not a habitual residence, or for home invasion if it was a habitual residence. It is important to provide the police with evidence that the property is yours and is your home (e.g., utility bills, deeds, registration…).
This criminal process can take between one year to a year and a half, depending on the court handling the case. The process does not necessarily have to be initiated by the property owner.
Civil Route
In the civil route, the property owner must initiate the procedure directly in court, filing the claim against all individuals who are unlawfully in the property.
The Civil Procedure Law provides several tools, one of which is the “express eviction” process, a special verbal procedure that allows the rightful owner of a property to claim its eviction and return from the occupiers.
A precautionary eviction can be requested before a final ruling is issued.
Sandra Márquez
Lawyer and CEO Expat&Legal Spain