What could happen if you force your way into your holiday home?

- If a landlord takes the law into their own hands, changes the locks, forcibly evicts squatters, or enters their home, they may be charged with trespassing and coercion.

- If they hire an “eviction” or “anti-squatter” company, the owner risks being considered an instigator or necessary accomplice if the company fails to reach an agreement with the squatter and commits a crime during the eviction.

Once the holidays and vacations are over, returning home can sometimes be an unpleasant surprise when you arrive to find that your property has been illegally occupied. So, what now?

Our office receives numerous enquiries about squatting because, although it is a well-known issue, when it has to be dealt with, people do not know what actions can and cannot be taken or what is the best and quickest option to resolve the problem without getting into further legal trouble.

For this reason, in today's article we are going to explain how you can act in the event of squatting, what your rights are as a property owner and what possible penalties you may face.

What is the difference between squatting and trespassing?

Firstly, we will explain the difference between trespassing and squatting.

We are dealing with a break-in when someone enters a house that constitutes a dwelling, i.e., one that is furnished and has utilities and services connected, which shows that the dwelling is being used by its occupant, even if only occasionally, as is the case with summer residences. In this case, the protected right in trespassing is privacy and the right to the inviolability of the home. This right has its constitutional basis and was originally intended to protect legitimate owners, but today it has been perverted by current legislation.

Secondly, there is the minor offence of unlawful occupation of property when it is a dwelling that does not constitute a home, is unfurnished, is not used even occasionally, and does not have utilities connected. In this case, the property is protected.

What are the consequences of forcing your way into your home?

What we would like to emphasise in this case is that, in the event of illegal occupation of a property, it is not possible to take the law into your own hands and change the locks, forcibly remove the squatters or enter the property and empty it of their belongings.

Such actions may have consequences for you as the owner and may lead to criminal proceedings for trespassing or, where applicable, coercion, bearing in mind that Article 18.2 of the Spanish Constitution states that every home is inviolable.

In addition to being charged with the offence of arbitrary enforcement of one's own rights under Article 455 of the Criminal Code, which punishes anyone who, in order to exercise their own rights, acting outside the law, uses violence, intimidation or force against property, with fines of six to twelve months, with higher penalties being imposed if weapons or dangerous objects are used for intimidation or violence.

If the owner chooses to hire a “squatter removal” or “anti-squatter” company, and if they reach an agreement with the squatter within the law, they may proceed with an agreed and voluntary eviction. However, if they commit any crime (coercion, trespassing, injury, threats, intimidation, etc.) in order to evict the squatter, the owner risks being considered an instigator or necessary accomplice to the crime.

Civil proceedings

In civil proceedings, you can claim protection of your property rights and possession, requesting that the judge declare eviction and order the occupants to leave the property, as they are occupying it without any legal title that legitimises their illegal occupation. The law also protects the owner when claiming for any damages that may have been caused.

Procedure to follow in criminal proceedings

As soon as you realise that your property has been illegally occupied, you must immediately inform the State Security Forces so that they can identify the people who have entered it. You must then file a complaint with the National Police, the Civil Guard or the Duty Court and wait for the legal proceedings to take their course in order to recover the property.

As the home is recognised as inviolable, no one, including the police, may enter it without a court order or the authorisation of its legitimate owner. Only if there is irrefutable evidence that a crime is being committed in flagrante delicto, at that very moment or has just been committed, may the police enter the home and evict the occupants, simply on the grounds of the crime. As this is very rare in practice and for legal certainty, the police do not usually enter the property unless they have the corresponding court order.

Unfortunately, the current legal framework is a maze for owners and seriously damages the interest of foreign investors due to the legal uncertainty of not being able to protect your property. If you want to find out more about how to avoid greater problems within squatting or illegal occupation, you should consult experts in the field.

If your property has been squatted in and you do not know what steps to take, please contact us.