Photo: Squatting Internationl Symbol
Squatters are a growing problem in Spain. If you own property there you need to know what steps to take to avoid problems with squatters. Lawyer Raymundo Larraín Nesbitt explains the growing problem.
By Raymundo Larraín Nesbitt
Lawyer – Abogado
8th of June 2012
As hinted in the conclusion of my article ‘Adverse Possession Explained’, from last year, squatters are on the rise. The underlying causes are many but can be narrowed down to the following ones:
- It is estimated there are over four million properties standing empty in Spain (source). From these, three quarters are second homes for both nationals and foreigners who use them mainly during the summer season. The remaining quarter are up for sale, whether resales or off-plan.
- ‘Official’ national unemployment has reached an all-time high of 25%, which eerily echoes the exact number reached by the U.S. during the Great Depression (source). In some autonomous communities the average borders 40%. While it’s true that many who are officially living off the dole are in fact working off-the-books (source), this is overrated. The main reason why these people are not starving (or indeed starting social riots) is that in Spain extended family has traditionally acted as a safety net in times of need along with prominent charity institutions such as Caritas (which are now overwhelmed).
- National youth unemployment (under 25-year-olds) is well over 50% and in some communities exceeds 60%. This quadruples the world’s average and doubles the European rate (source).
- As of April 2012, 1.7mn families in Spain have all their members unemployed. A 25% increase over the previous year. (source)
- 700,000 people have become long-term unemployed – meaning they haven’t worked for the last three years (source).
- In the years spanning from 2007 to 2011, there has been over 350.000 bank repossessions (source).
- And last, I wanted to add that one in four minors in Spain are now living below the poverty threshold (two million to be exact). Children who only a few years ago would have been regarded as coming from working middle class families (source).
Yet politicians, and Spanish media at large, insist in calling it a ‘recession’. I beg to differ.
With the above daunting scenario unfolding in Spain, it shouldn’t come as a surprise that squatting is on the rise; what is surprising are its – still – relatively low numbers despite the severe ongoing financial turmoil. Hopefully after Spain’s bailout this trend will curb down.
Insight into the Squatter Movement
Squatting (popularly known as ‘okupas’) is a militant well-organised pacifist movement with a social agenda that flourished in the 80’s in eastern Spain, particularly in Barcelona. Entire communities of youths ‘peacefully’ occupied empty properties, even whole buildings, many of which were derelict and in a state of disrepair unfit to live in by any reasonable standard.
Surprisingly enough, a large part of the population actually support them as they are seen as ‘beneficial’ for neighbourhoods because they are bent on setting communities in what were previously deprived areas, stricken by petty crime, recovering them for society at large. On following their social agenda to occupy derelict property, which is the object of planning speculation, they transform what were previously hotbeds of drug users into productive communities from which whole neighbourhoods benefit as a result. They are legally assisted by lawyers who are ideologically close to them.
The government, over the next decade, clamped down on such practice amending our criminal code in 1995 and then again 2010 to punish this burgeoning movement.
Financial turmoil breeds new class of squatters
The key difference with the above, is that many of the current reported cases are driven by need, not by personal beliefs, as a direct consequence of the financial crisis we are in – hence my introduction to the article. We are no longer talking of well-organised social outcasts following political or social agendas driven by utopian ideals of shaping society. The profile of new squatters are struggling middle class family men that have undergone a repossession and are now finding themselves forced to occupy somebody else’s property to lodge their family. They are not militant members of an organised social movement, they merely act out of necessity. One of the first things squatters will do is change the house locks and ‘empadronarse’ in the property at their local town hall which allows them even more rights.
The good news for foreign property owners is that professional squatters tend to stick to large Spanish cities. You won’t normally find them roaming the costas, much less in urbanisations or golf resorts. They are particularly fond of the region of Catalonia and specifically of Barcelona – they may be squatters, buy one cannot deny they have good taste.
The new breed of squatters, acting out of need, isn’t particularly fond of foreigner’s homes either typically preferring Spanish homes, even their ex-homes; now bank-owned post-repossession.
A reform in 1995 was enacted to tackle this legal problem. Squatters – smartly – will not break into a property that has inhabitants so as not to be criminally prosecuted. They will only target empty properties, such as second homes, which are not under such strict legal protection. They will rarely use violence. The only article that dealt with this problem pre-reform was art 202 of the Spanish Criminal Code which referred to illegal trespassing. However, it required that the property be dwelt at the time of the squatting.
So what happened if a property was uninhabited at the time of the break in? There was a legal loophole which squatters exploited to the fullest. The ensuing social alarm brought the need to address this legal void.
A new section was introduced by lawmakers in 1995 to accommodate this new disturbing social trend. For the first time this crime was ruled in our criminal code.
Art 245 of the SCC rules this case. The first section punishes using violence or intimidation to enter – or remain – in a dwelling (which is empty) against the will of the owner. Section two punishes the former when no violence is involved.
Surprisingly, the reform only punishes squatters with a mere fine for ‘peacefully’ occupying an empty property or remaining in one against the will of the owner – no jail sentence! The reasoning behind this is that it is a ‘non-violent’ occupation of an uninhabited property. Go figure.
Squatters can, and usually are, accused additionally of a number of associated crimes such as destruction of private property, resistance and disobedience to public authority, public disorder, illegal connection to utility supply, insalubrious living conditions, noise making etc. All these can be used in addition to build a case criminal case against them.
Distinction between the concepts of ‘allanamiento de morada’ and ‘usurpacion’
For the sake of clarity, the former is ruled in art 202 of the Spanish Criminal Code and punishes illegal trespassing. It is devised to defend legally someone who has a right of abode in a property (is actually permanently living inside it) at the time squatters force themselves in – they work in groups. Evicting a squatter in such a case is swift.
The latter was brought in with the reform of 1995 and was geared to specifically target squatting. It is thought for properties that usually stand empty all year round, such as holiday homes, and protects the registered owner, the title holder. It is ruled in art 245 of the SCC.
Can’t I just walk in and change the locks to my property?
No. On squatters taking over your property, you lose material possession of it. Meaning should you attempt to enter it, despite a property being rightfully lodged under your name at the land registrar and you paying all utility bills and even mortgage repayments, it will be regarded as ‘illegal trespassing’ for which you can – and will – be legally prosecuted.
I strongly advise you to seek legal advice prior to taking a rash decision that may land you in a Spanish jail.
1. Criminal Procedure
It begins with a ‘denuncia’ at the local police station. Anyone can file it, as it is a public crime.
Advantages: It is the procedure that punishes squatters the harshest – but only if violence is involved and the property was being lived in. Professional squatters will avoid using violence.
– Because it is the legal option which punishes them the hardest, it is also the option that protects them the most. They will have many legal safeguards in place protecting their ‘rights’.
– It is slow, even taking years.
– It is expensive.
2. Civil Procedure
The most frequently used in addition to the above.
Advantages: Faster than the above.
Disadvantages: The squatters will not be removed from the property until a judge rules it in a sentence. This may take some time.
3. Administrative Procedure
This procedure is limited to administrative authorities on public assets. It will not be available to private individuals.
– Swift, within the next 48 hours of the occupation. Normally longer.
– No need of a judge’s ruling to evict squatters. Eviction is determined by an Administrative authority, such as a politician if signed within the next 48 hours.
– The property must belong to a public administration, leaving out privately owned property.
– Can only be done within the first year of squatting. After a year, the appropriate procedure to be followed must either be a Criminal or Civil one, as a judge must rule on the matter having the owner lost possession of the property.
The ensuing options, though followed by a minority, are illegal and you may be criminally prosecuted on following some of them – even leading to a prison sentence. I am in no way advocating them, merely adding them as another option which – in my opinion – should not be followed.
4. Taking Justice into your own hands
– Very swift.
– Depending on how it is done, cheap.
– You may be criminally prosecuted for hiring thugs, for using physical violence or intimidation, for breaking into the property etc.
– You will have a criminal record if sentenced.
Same as point four above, I do not condone this option.
– Very swift.
– Is tantamount to caving in into blackmail.
– May prove expensive depending on the amount agreed as ‘compensation’ to ‘free’ the property.
– There is no guarantee that squatters will not return. In fact, it may backfire, as new squatters may be drawn to occupy the property knowing the owner is willing to pay to have them removed.
6. Squatting the squatter
This option consists in outwitting them using their own tactics against them, exploiting the law in your favour – just like they do. You become a squatter on your own property. You will wait patiently outside, until the squatter leaves the property for whatever reason. Seizing the opportunity of a vacant property you then force your way in and immediately proceed to change the locks – again.
Should the police be called in you can always claim that it is your home, showing the title deed and that you’ve decided to change the locks. You will not mention at all the word ‘squatter’ and in any case you can always report them if they foolishly trying to force themselves back in your property. Squatters will be hard pressed to sue you, as you are after all the legitimate owner.
They will not try to break into the property once you are inside as this would be a crime punishable with jail, which is exactly what they try to avoid at all costs. What you cannot do is first file a ‘denuncia’ against them and then pursue this option as you would surely be prosecuted – you cannot hedge your bets pursuing both options; it’s one or the other. If you follow this option you must forget requesting police assistance and stick to your guns. Just to make it clear, I do not advocate this option.
– Very swift.
– Depending on how it is done, very cheap.
– No violence necessary – there should be no violence at all.
– You can always prove you are the rightful owner if necessary i.e. Title deed, witnesses
– Cunning but not very legal. If a long time has elapsed, such as weeks or months, squatters may have already registered themselves as inhabitants in the property at their local town hall, in which case your legal position would be tricky to say the least. This would considerable weaken your legal stand and may lead you to being prosecuted.
– You’ll need to be in full control of your emotions.
– Professional squatters will work in teams and they will rarely make the stupid mistake of leaving a squatted property empty. However, not all squatters are professionals as explained in the article’s introduction. If you force your way in while there’s someone still inside you may find yourself being prosecuted for illegal trespassing (regardless if you are the owner). So make sure there is no-one inside at the time.
Depending on the personal circumstances of your case the procedure will vary. It can be very fast or slow (years). If there are witnesses, i.e. neighbours, and it has just occurred squatters can be immediately evicted fast-tracking it. However, if time has elapsed, as in days, a legal ruling may be necessary which may delay the procedure furthermore. Most foreigners won’t be as lucky and will only realise they’ve been squatted on booking a holiday and flying over only to find their second home ‘invaded’.
If there is violence or intimidation involved, or if there is actually someone living at the property at the time of occupation I advise you follow a criminal procedure.
Professional squatters will never resort to violence or intimidation to avoid prison sentences. Normally you are better off pursuing a civil procedure against them to have them removed.
Or you can take your chances following one of the above non-legal options – not recommended.
The average time to fully evict a group of squatters is 18 months. This may vary, depending on the cases’ circumstances, as described above. Personally I do not like the current laws on the matter and find them both slow and ineffective. Let’s hope lawmakers address the legal shortfalls in the future adopting a harder and more decisive stance to this worrisome trend. Property owners deserve more legal protection; after all, they pay taxes – well, most do anyway.
I would advise an owner who has fallen victim of squatters to seek immediate legal counsel. This is necessary because, depending on the circumstances on how they broke in, different legal options fan out. Rushing in to call the police or file a denuncia against squatters – though human – may not be in your best interests.
Speak with a seasoned lawyer first, you may be surprised.
Owners that take justice into their own hands, particularly on using violence and/or intimidation, may find themselves being criminally prosecuted and remanded into custody pending trial.
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2012 © Raymundo Larraín Nesbitt. All rights reserved.