The great social concern about the illegal occupation of real estate by “squatters” has reached its maximum in 2020. The coronavirus and the health and economic crisis is overshadowed by few problems. But, without a doubt, the problem of housing occupation generates a lot of uncertainty and concern, and raises a clear question:

What is the best, fastest and most effective way to proceed to regain possession of your occupied home by squatters?

Today, many citizens have been harmed by the illegal occupation of their properties. Damage that is increased by the slowness of Justice, which forces owners to wait a long time to recover a home that belongs to them.

The most discouraging thing is that the current situation shows the failure of Law 5/2018, of June 11, modifying Law 1/2000, of January 7, on Civil Procedure, in relation to the illegal occupation of homes. Said Law, under Civil Law, and despite the fact that it promulgated what is known as “express eviction“, for the immediate recovery of the occupied dwelling, has caused the slowness to recover it to despair of its owners, especially if the squatters demonstrate economic vulnerability since, in this case, the protective activity of the Administration must be deployed, stopping the expulsion of the squatters until accommodation is found. To expel a squatter family with minors who are economically vulnerable, is to generate a problem that the Administration must solve, in order to solve another problem.

Through the aforementioned Law 5/2018, of June 11, a way is articulated that, far from being fast, takes about 8 months to allow the recovery of possession to the owner: by filing a lawsuit in civil proceedings, to the one that the squatter can oppose plus the time it takes to materialize the execution of the sentence, raises the materialization of the launch of the squatters to many months.

The fact that the previous Law 5/2018, of June 11, is not an effective solution makes it much more effective to file a precautionary measure that requires the squatter to accredit the power to dispose of a home that he does not have, within 5 days .

A furnished home with hired supplies can be evicted more quickly, even if it is a second residency.

Therefore, is the solution to the occupation of homes in criminal proceedings better than in civil proceedings?

The minor offense of article 245.2 of the Penal Code, of occupation of a property that is not the owner’s residence, has the disadvantage that it does not allow to go to a precautionary measure. However, article 202 of the Penal Code, in the event that the illegal occupation is a dwelling that is the owner’s residence, does allow the adoption of a precautionary measure of article 13 of the Penal Code. In this way, the latter assumption allows that, after filing a complaint with the Police Station or Civil Guard, or before the investigating court, the judge can adopt urgent precautionary measure that enables the State security forces and bodies to require illegal occupants to show the title by virtue of which they occupy the property and that, within 72 hours, the property that is home can be recovered, based on the precautionary measure. This situation applies, as has been said, to the case of occupation of residence, habitual residence of a person, and not to a second residence, garage or warehouse.

It is interesting to note that the Supreme Court does not associate the dwelling with the administrative concept of housing, but rather protects any habitable dwelling and, therefore, possible protection in criminal proceedings.

In other words, the minor offense in article 245.2 of the Penal Code would only cover housing without furniture and without registration of essential services to develop life in it. Whereas, a home that is occupied most of the time or another which is occupied on a regular or temporary basis, its occupation can be defended by trespassing, and not only the one in which the person is registered for administrative purposes. It is important to note, therefore, that a home that we use sporadically and temporarily could also be vacated by the most effective way of article 202 of the Penal Code, resorting to the precautionary measure of immediate expulsion from the property of the illegal occupants, by reporting the trespassing of squatters.

The fastest way to evict squatters is to report the illegal occupation of a property, suitable to be inhabited, furnished and with essential hired supplies such as electricity, water or gas, where the person develops his life permanently or temporarily.

CONCLUSIONS:

When you want to report the illegal occupation of a home, suitable to be inhabited, furnished and with essential supplies registered such as electricity, water or gas, where the person develops his life permanently or temporarily, you can resort to protection, and eviction, through the most effective article 202 of the Penal Code.

The way to proceed would be to report via article 202 of the Penal Code, requesting the immediate expulsion of the occupants, before 72 hours, by adopting a precautionary measure.

Only when the property is permanently uninhabited, unfurnished, without contracted services of electricity, water, gas supplies, etc., will it be necessary to resort to a lesser protection, such as that of Law 5/2018 or article 254.2 of the Code Penal. Unfortunately, and as we have already commented, these procedures do not allow requesting the precautionary measure of immediate expulsion of the illegal occupants, and the rescue of the possession of the illegally occupied dwelling will be considerably slower.

The dwelling that can be protected from its illegal occupation with an immediate eviction is not only, as we have already mentioned, the habitual dwelling from the administrative or tax point of view, but in which, permanently or temporarily, private life is developed in part or in its entirety, also covering the second residence.

In conclusion, the criminal procedure is obviously much more effective than the civil one, in the case of properties that can be considered the home of the owner, to evict squatters quickly and efficiently.

If you need to evict squatters or claim rental amounts owed, do not hesitate to contact the Pérez Parras Economists & Lawyers law firm, with premises in Malaga town centre and Nerja. We are experts in drafting contracts and solving problems of leasing of properties and commercial premises, sales, claiming amounts owed, evictions and preparation of lease contracts.