Article 202 Spanish Criminal Code: Unlawful Entry into a Dwelling

Article 202 of the Spanish Criminal Code protects the dwelling as the physical space of private life. It punishes the private individual who enters another person’s dwelling, or remains in it, against the will of the occupier. For the foreign owner of a property on the Costa Blanca the article matters for a specific reason: whether a property is a dwelling in the sense of this provision, or merely a building within the scope of article 245, decides whether an intrusion carries a prison sentence of up to two years or a fine of three to six months, and therefore decides how the police and the investigating court will treat the report.

Wording of Article 202 of the Spanish Criminal Code

Elements of the offence

1. A dwelling belonging to another, understood as a space actually used for private life. A holiday property that its owner uses seasonally retains that character; a building that is closed, unfurnished and not in use as a dwelling does not.
2. A perpetrator who is a private individual and who does not live there. A person entitled to occupy the dwelling cannot commit the offence.
3. Entry, or remaining after a lawful entry, against the will of the occupier. That will need not be expressed: it is inferred from the closure of the property and the absence of any invitation.
4. The offence is complete on entry. No damage, no theft and no confrontation is required, and the consent of one occupier is in principle sufficient to exclude it.

Defence strategy

The property was not a dwelling. This is the most consequential argument and it runs in both directions. Where the property was empty, was on the market, had no services connected and was not in use as anyone’s private space, the conduct is the unlawful occupation of article 245.2, punished by a fine, and not the offence of article 202. Conversely, an owner reporting an intrusion into a property genuinely used as a seasonal residence must document that use, with utility bills, travel records and photographs, precisely because the police response to a report of article 202 is immediate whereas a report of article 245 is not.

Consent, presumed consent and title to occupy. A key given by an agent, a tenancy that has expired but under which the occupier has remained, a permission granted verbally by a co-owner, or continued occupation by a separated spouse are all situations in which either consent or a title to occupy defeats the offence and moves the dispute to the civil courts. The defence assembles the documentary record of the relationship between the parties, which in family and letting disputes is usually decisive.

Remaining rather than entering. Where entry was lawful, the offence requires a clear and unequivocal demand to leave and a refusal after it. A guest who overstays, a visitor asked to leave during an argument, or an occupier who remains after a verbal notice frequently lacks the express demand the provision requires, and its absence from the file is fatal to the charge.

Necessity, error and intoxication. Entry to avoid an imminent harm, entry by mistake into the wrong property in a development of identical units, and entry in a state of serious intoxication all bear either on unlawfulness or on the mental element. These arguments are supported by the layout of the development, the state of the door and the medical examination carried out on arrest, and they are commonly available in the residential complexes of the province of Alicante.

• Squatting and unlawful occupation: legal service
• Article 245: unlawful occupation of property
• Spanish Criminal Code by article
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.