Illegally occupied property: legal routes to recover possession

Key legal distinction: breaking and entering a dwelling vs. unlawful occupation of property

When designing an effective strategy to recover an occupied property, the first technical step is to correctly classify the conduct of the occupants. The Criminal Code distinguishes between two legal concepts with substantially different procedural consequences:

1. Breaking and entering a dwelling (Article 202 of the Criminal Code)

This offence occurs when occupation takes place in a property that constitutes the main residence or second home of an individual. Under Criminal Law, the concept of a dwelling (morada) encompasses any enclosed space where private or family life takes place, regardless of whether the owner is present at that moment or whether the property is used consistently throughout the year (as is the case with holiday homes).

• Procedural nature: It is a serious offence.
• Police action: As it directly violates privacy and fundamental rights, law enforcement agencies are empowered to intervene directly in cases of an ongoing offence, proceeding with the eviction and identification of the intruders.

2. Unlawful occupation of real estate (Article 245.2 of the Criminal Code)

Unlawful occupation occurs when unauthorised entry takes place in an uninhabited, vacant property, or one intended for rent or sale that does not meet the requirements to be considered a dwelling. This is a common situation for properties owned by funds, entities or private individuals with empty real estate.

• Procedural nature: It is classified as a minor offence unless violence or intimidation is involved.
• Police action: It requires a judicial procedure to order eviction, unless police intervention takes place within the first few hours of the unauthorised entry.

Judicial routes to recover an occupied property

To achieve the return of possession, the procedural system offers two main avenues in court: the civil route and the criminal route.

The civil route: summary protection of possession and proceedings for precarium

The civil route has established itself as one of the most widely used options for restoring possession, particularly following procedural reforms designed to expedite these mechanisms:

• Summary protection of possession (procedure under Law 5/2018): This procedure allows individuals, non-profit organisations and public housing bodies to request the immediate handover of possession. Once the claim is admitted, the court serves notice to the occupants to provide, within a maximum period of five days, the legal title justifying their stay (such as a valid tenancy agreement). If no such document is provided, the judge issues an order directing the immediate eviction.
• Verbal eviction trial for precarium: This action is brought when a person occupies the property without paying rent or having a valid title. It is brought before the Court of First Instance in the municipality where the property is located to demand the return of possession.

The criminal route: formal complaint or criminal lawsuit requesting an injunction

The criminal route begins with a formal complaint submitted to the police or duty court, or via a criminal lawsuit filed through legal counsel. Its strategic advantage lies in the option to request an urgent eviction injunction under Article 13 of the Criminal Procedure Act.

If the investigating magistrate finds sufficient evidence of an offence and significant, irreparable harm to the owner, they can issue an interim eviction order prior to the trial. For the application to succeed, it is essential to provide documentary evidence of ownership and legitimate use of the property.

Key steps when faced with unlawful occupation

Upon confirming unauthorised access, taking the following steps methodically will help speed up the process to recover an occupied property:

1. Immediate notification of the authorities: Report the matter straight away to the National Police or Civil Guard. Speed is crucial if the entry has just occurred, as it enables police action on the grounds of an ongoing offence.
2. Proof of ownership: Gather the public title deed, an updated land registry excerpt (nota simple) from the Property Register, utility contracts and tax receipts (such as IBI) that prove ownership of the asset.
3. Gathering evidence: Obtain statements from neighbours, the president or manager of the owners' association, as well as CCTV footage where available in compliance with data protection laws.
4. Securing legal counsel: Consult a specialised firm to file the relevant claim or complaint without delay.

Mistakes to avoid so as not to prejudice proceedings

The distress caused by unauthorised occupation sometimes leads owners to make unilateral decisions that harm their legal standing. Certain actions are expressly penalised under the law:

• Cutting off utility services: Deliberately cancelling or stopping payment on electricity, water or gas bills to force occupants out can be legally classified as the offence of coercion under the Criminal Code. Case law holds owners liable if they resort to this practice.
• Unauthorised entry or changing locks: Entering the property or changing the lock once the occupants are settled inside can lead to charges of breaking and entering or the offence of arbitrary enforcement of one's own rights.
• Use of private coercive measures: Resorting to pressure tactics outside judicial channels exposes the owner to criminal liability and hinders the eviction process.

Property ownership and subsidized housing regimes

The characteristics of the owner and the property affect how proceedings are handled:

Large property holders and small private landlords

The Civil Procedure Act sets out specific procedural requirements based on the nature of the claimant. Those who qualify as large property holders must comply with additional steps, such as proving beforehand whether the occupants are in a situation of economic or social vulnerability via a report issued by competent social services.

Publicly Protected Housing (VPO) in the Comunidad de Madrid

In the specific case of Publicly Protected Housing (VPO) located in the Comunidad de Madrid, unauthorised occupation carries administrative implications. Regional regulations in Madrid require these properties to be effectively used as the main residence of their legitimate assignees or buyers. An illegal occupation compromises compliance with these obligations to the regional government, making it necessary to combine legal proceedings with formal notification to the relevant regional authority responsible for protected housing in the Comunidad de Madrid.

Legal protection and property recovery

Restoring possession and claiming damages or losses caused requires strict mastery of civil procedure, the Criminal Code and updated case law criteria from the Provincial Courts. Sound justification of interim injunctions and thorough follow-through during the judicial execution phase ensure that the asset is returned to its owner with full legal guarantees.

At Sky Real Estate, we have a specialized department dedicated to defending property rights over real estate assets. The legal team at Sky Law has been recognised at the European Legal Awards (2023-2025) for its technical rigor in property law, operating under strict quality standards and with the corresponding registration as a credit intermediary ICI D-286 with the Banco de España.

If you require specialised legal assistance to defend your property or initiate the appropriate judicial procedure, consult our team of property lawyers to assess your case and design the most effective strategy.