For the law, an individual's home is a specially protected personal space. This is what article 18.2 of the Spanish Constitution refers to when it indicates that the domicile is inviolable. Nor should we forget that no entry or inspection can be made to a dwelling without the consent of the owner or a judicial resolution, except in the case of flagrante delicto. Due to this, the crime of trespassing is sanctioned in the Penal Code.
What is the crime of trespassing?
The Penal Code describes in articles (202 to 204) how to deal with breaking and entering. Bearing this in mind, the crime of trespassing consists of entering someone else's home or staying there against the will of the person who lives in that place. The dwelling in this case includes both the home and the domicile of a public or private legal entity, professional office or office open to the public outside of opening hours.
Likewise, we are facing this crime when a person refuses to leave a foreign dwelling against the will of its owner. This implies that a person may have entered a premises with the consent of the owner, but later the owner wants to evict him for whatever reason he considers.
Authorities or public officials may only access a private home or dwelling when it is expressly provided for by law and there is a legal cause.
Penalties for entering a home without permission
The simple entry into someone else's home without permission is already considered a crime of trespassing.
The different of the crime of breaking and entering
The punishment that is imposed for committing this crime depends on its seriousness. To begin with, we can distinguish between the basic type and the aggravated type. In the basic type, a third party enters or stays in a dwelling without the consent of the person who lives there, but there are no aggravating circumstances. The gift for the offender in this modality is a prison sentence of six months to two years. The aggravated form of this crime occurs when the home invasion is done with violence or intimidation. In these cases, the award is a prison sentence of one to four years and a fine of six to twelve months.
In the case of illegal entry into professional offices, companies, offices or premises open to the public outside of their opening hours, the penalties are imprisonment from six months to one year and a fine from six to ten months. We also have the case in which the person / s continue to remain in the property against the will of its owner, their punishment is a fine of one to three months.
As a curiosity, we have the situation in which the person who carried out the home invasion is a public official. The penalties that we have previously described will be applied to him, in addition to the absolute disqualification from carrying out his work for six to twelve years.
Would it be trespassing if the door is open?
If a person leaves the door of his house open unconsciously or on purpose, it should not be understood as a tacit consent to allow a third party or a stranger to enter it.
What is meant by dwelling or home?
When we observe articles 202 to 204 of the Penal Code, the dwelling is a closed space in which an activity of private life is carried out with the exclusion of third parties. All rooms or dependencies in internal communication with the house are included. And it does not have to be a habitual, permanent or occasional residence. This is not the same as "legal domicile", which does not necessarily require living there. Nor with the "inhabited house", because the figure of the dwelling is broader.
Likewise, certain delimited spaces that are exterior but are attached to the dwelling are considered dwellings. Here we have the gardens, patios and garages, among others. However, a block's portal, corridors, or stairs are not included. Also abandoned homes or those under construction. Bars, cafes, restaurants and other places open to the public are also not understood as dwelling. Despite this, they are also protected by the Criminal Code, as we have already explained.
The case of cars is striking with regard to what is considered dwelling. This concept includes vans, caravans, even a tent, but not private cars as such.
If someone is on your property without your permission and you want to evict them, give us a call.