Article 245 Spanish Criminal Code: Squatting and Unlawful Occupation of Property

Article 245 of the Spanish Criminal Code is the provision behind what English-speaking owners in Spain call squatting. It contains two very different offences: the violent occupation of real property, which carries imprisonment, and the occupation without authorisation of a building that is not somebody’s dwelling, which carries a fine of three to six months and nothing else. That second, lesser penalty explains why a report of unlawful occupation does not produce the immediate police intervention that owners expect, and understanding the structure of the article is the starting point for both the owner and the person accused.

Wording of Article 245 of the Spanish Criminal Code

Elements of the offence

1. Real property belonging to another. The provision protects possession, so the complainant must establish title or a right to possess, ordinarily through the land registry entry.
2. Occupation without due authorisation, or remaining in the property against the will of the person entitled. Any title, however weak, takes the matter outside the criminal law.
3. A degree of permanence. A momentary or transitory intrusion does not amount to occupation: the conduct must show a settled intention to use the property as one’s own.
4. For paragraph 2, the property must not constitute a dwelling. For paragraph 1, violence or intimidation against persons, not against things, is required.

Defence strategy

The existence of a title, however imperfect. The offence requires occupation without due authorisation. An expired tenancy under which rent continued to be paid, a verbal permission from a previous owner or from one co-owner, a loan of the property for an indefinite period, or an agreement with an intermediary who purported to act for the owner all defeat the criminal charge and convert the matter into a civil dispute over possession. The defence produces the transfers, the messages and the witnesses to that arrangement at the earliest stage, because an investigating court presented with a colourable title ordinarily discontinues the case.

Permanence and the absence of an unequivocal demand. Where the occupation was brief, or where the case rests on remaining against the will of the holder, the file must contain a clear demand to leave addressed to the occupier and a refusal after it. A generic complaint, a notice posted on the door or a message sent to a third party frequently fails to satisfy this requirement.

Distinguishing the dwelling. Paragraph 2 applies only where the property is not a dwelling. Where the prosecution charges article 202 in respect of a property that was empty, unfurnished, disconnected from services and not in use as anyone’s private space, the correct classification is this article, with the consequence that the exposure falls from a prison sentence to a fine. The evidence is documentary: consumption records, the state of the property on entry and the photographs taken by the police.

Acting for the owner. Where the firm acts for the owner rather than the occupier, the criminal complaint is only one instrument and rarely the fastest. The interim restitution of possession may be sought within the criminal proceedings, and in parallel the civil route for the recovery of possession is available and is usually quicker where the occupier is identified. The decision between the two, and whether to pursue both, depends on whether the occupation is recent, whether the occupiers can be identified and whether any vulnerable person is present, since the presence of minors materially changes the timetable.

• Squatting and unlawful occupation: legal service
• Article 202: unlawful entry into a dwelling
• 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.