If I go on holiday and someone breaks into my house, is it a squat or a break-in ? What if they break into my second home? Or into my deceased grandparents' house in the village? Or if they break into a house owned by the bank?
Is it true that the law protects squatters more than property owners? To answer this question and all the previous ones, we first need to know the difference between squatting and breaking and entering .
Squatting (the crime of usurpation) is not the same as the crime of gambling database breaking and entering. Both affect different legal assets and have different penalties. We will be dealing with one crime or another depending on the nature of the property that has been entered.
If they enter an unused property = crime of usurpation or squatting.
Crime of breaking and entering
It is regulated in art. 202 of the Penal Code:
Any individual who, without living there, enters another person's home or remains there against the will of its occupant, shall be punished with imprisonment from six months to two years.
It involves entering another person's home without the owner's consent. For example : I go on vacation and someone enters my house without my consent while I am away.
Protection of the home
Article 18.2 of the Constitution establishes that the home is inviolable .
Let's go back to the previous example: I go on vacation for 15 days, on the second day someone breaks into my house, and on the eighth day I find out that my home has been "occupied." As long as the burglars are in my house, the crime is still being committed. It is a flagrant crime. The police can then come in and arrest the person who has entered my house without my consent. This is stated in the Constitution itself.
[su_box title=»Art. 18.3 CE» style=»glass» box_color=»#808080″]The home is inviolable . No entry or search may be made therein without the consent of the owner or a court order, except in the case of a flagrant crime .[/su_box]
If the crime of breaking and entering occurs, once the incident has been reported to the Police or Civil Guard, it is not necessary to wait for any judicial resolution; the State Security Forces and Corps have the obligation to proceed with the arrest of the trespassers, returning the home to its owner.
Concept of abode
In the criminal field, a dwelling means: a closed space separated from the outside world in which its owner carries out daily activities , whether this activity is permanent or temporary . That is, first and second homes.
Example : if I live in Madrid but I have a second home in Cadiz and someone enters said home, it is also breaking and entering even if I only live in the house in Cadiz for 3 months.
Homes that are unfinished, abandoned or unoccupied are not considered to be dwellings, that is, habitual residences.
Example : the house in the village of my deceased grandparents is unoccupied. It is not considered a residence.
Crime of usurpation or "squatter"
It is included in article 245.2 of the Penal Code:
Anyone who occupies, without due authorization, a property, dwelling or building belonging to another person that does not constitute a residence , or remains in them against the will of their owner, will be punished with a fine of three to six months.
This is a minor offence . The key is that the person is occupying a property that is not a dwelling. If a dwelling is "occupied", this is the offence of trespassing and the police can evict immediately. If the person is occupying a property that is not a dwelling, the eviction will only take place with the required court order.