MISAPROPRIATION OFFENCE IN SPAIN
The misappropriation offence is regulated in Chapter V, Title XIII of the Spanish Criminal Code, under the heading «Crimes against property and the socio-economic order«.
More specifically, occupation of a real estate appears in Article 245 of the Spanish Criminal Code.
In this regard, Article 245.1 of the Spanish Criminal Code criminalizes the illegal occupation of an uninhabited dwelling without the consent of its owners, using violence or intimidation.
In its second paragraph, it regulates the minor offence of usurpation.
PROTECTED LEGAL RIGHT OF ART. 245.2
The legal right protected by the offence of usurpation in Spain is possession.
Although it is important to mention that there is also civil protection of possession, not every disturbance of possession can be remedied via criminal law. According to a sector of the doctrine, in accordance with the principle of minimum intervention, the criminal provision should be reserved for the most serious cases of usurpation of property.
ELEMENTS OF THE CRIMINAL OFFENCE OF MISAPROPRIATION IN SPAIN
– The occupation, without violence or intimidation, of a property or building which at the time does not constitute the dwelling of any person, carried out with a certain intention of permanence.
– That this disturbance of possession can be criminally classified as an occupation since the interpretation of the typical action must be carried out from the perspective of the protected legal interest and the principle of proportionality that informs the criminal system (Art 49 3 of the Charter of Fundamental Rights of the European Union).
– That the active subject of the occupation lacks a legal title that legitimizes this possession.
If he has been authorized to occupy the property (even temporarily), the action should not be understood as criminal, and therefore, the owner must resort to civil proceedings.
Some examples of actions that cannot be included in the criminal type are: squatters, tenancies of a room, leasing to the tenant without the consent of the landlord, subletting in non-consensual leases…
– That the will against tolerating the illegitimate occupation by the owner of the property, prior or after the illegitimate access, is on record.
As established by the Provincial Court of Madrid in the judgement dated 19th of July 2007, it is necessary that in the oral trial the complainant proves the absence of consent for the occupants to continue in the property.
– Concurrence of malice on the part of the perpetrator, that is, knowledge of the alien nature of the property and of the absence of authorization.
The Provincial Court of Madrid, in the judgment of 21 June 2016, acquitted of the crime of usurpation, after establishing that there is no conviction judgement can be issued if there is reasonable doubt as to the existence of malice on the part of the perpetrator.
PENALTY FOR THE OFFENCE
It shall be punishable by a fine of three to six months.
DIFFERENCE BETWEEN USURPATION AND TRESPASSING
Both offences contemplate similar conducts, although they are two different types of criminal offences.
The offence of breaking and entering is regulated in article 202 of the Spanish Criminal Code, it is an offence that consists of entering and remaining in someone else’s home, and therefore, the protected legal right is the non-viability of the home.
In other words, while breaking and entering requires that the occupied dwelling is the one in which the injured party is currently living, in the case of usurpation, it is the entry into a second residence that is uninhabited.
Through the offence of usurpation it is not possible to establish a precautionary measure of eviction as it is a minor offence, whereas in the offence of trespassing there is the possibility of establishing such a precautionary measure when the court establishes that the occupied dwelling is considered to be a dwelling and that it is not abandoned.
The offence of trespassing is punishable by a prison sentence of six months to two years, while the offence of usurpation is a misdemeanour punishable by a fine, as mentioned above.