What is a home invasion? Everything you need to know

Organic Law 10/1995(Penal Code) established for the first time the crimes of breaking and entering and usurpation in articles 202 and 245, respectively.

A key aspect to distinguish the different types of crime is the conception of the term “.abodewhich is addressed in Supreme Court Ruling number 1775/2000, defining it as “…”.the enclosure, generally closed and roofed, in which the passive subject and his close relatives, live, develop their intimate and family life, being understood within this enclosure, endowed with special protection not only the rooms destined to the cohabitation in intimacy, but as many annexes, The said enclosure, endowed with special protection, includes not only the rooms used for living together in privacy, but also any annexes, outbuildings or dependencies constituting the environment of the private life of the dwellers, indispensable for the development of said family intimacy, and which, if violated by the intrusion of strangers, implies an infringement of the intangibility protected by the Law“..

1. The fundamental right to the inviolability of the home

The right to inviolability of the home is a fundamental right established in Article 18 of the Spanish Constitution, whose protection aims to guarantee the scope of privacy within the limited space chosen by the person himself and that it is exempt from external invasion by other persons or public authority.

Given its relevance, this fundamental right has also been recognized in the Universal Declaration of Human Rights, in the International Covenant on Civil and Political Rights and in the European Convention on Human Rights, which establishes the right of individuals to respect for their private life, without anyone being able to intervene in it, to their home and correspondence, with protection by law against interference by third parties.

Therefore, the inviolability of the home is a fundamental right that protects, in addition to the physical space to which it refers, the private sphere of the person who develops his privacy in it, protecting the most precious intimacy of individuals, so that any interference in it constitutes a criminal conduct punishable, in many cases, with imprisonment.

2. The crime of breaking and entering

The crime of breaking and entering is regulated in articles 202, 203 and 204 of the Penal Code.

The first type of crime contemplated in Article 202 of the Penal Code distinguishes between the basic type of breaking and entering and an aggravated case if it is committed with violence or intimidation:

• The first paragraph of the aforementioned article (202.1 PC) punishes the individual who, not living therein, enters or stays in another’s dwelling against the will of its inhabitant with a prison sentence of 6 months to 2 years.

• The second paragraph of the aforementioned article (202.2 PC) aggravates the penalty of the first paragraph, if the act is carried out with violence or intimidation, to a prison sentence of 1 to 4 years and a fine of 6 to 12 months.

Our legislator foresees two types of conduct: the one that involves “entering another’s dwellingThe law provides for two types of conduct: ” enteringanother’s dwelling“, an action of an active nature, and “staying in a dwelling without dwelling therein“, an action of an omissive nature. In order to understand the correct differentiation of the concepts, each of them will be explained.

The term “enterThe term “enter” contemplates the action of entering a space qualified as a dwelling. According to the RAE(Royal Spanish Academy) “to enter” is defined as “topass from outside to inside“. On the other hand, “to remain without dwelling in the same“as already mentioned, constitutes an omissive modality, since it assumes that the subject has entered. This modality requires the prior consent of entry and its subsequent cessation, so that the inhabitant authorizes the entry at first, ceasing his desire to consent to stay thereafter.

Likewise, “against the will of the occupant“also refers to a form of entry in which the opposition of the inhabitant must be clearly or tacitly stated. This action is contemplated in the two types of breaking and entering referred to above (with or without violence or intimidation).

It should be clarified that the crime of breaking and entering is consummated at the moment when the subject has entered another’s home or disobeys the will of the inhabitant to leave. This crime can be prolonged in time, attacking the inviolability of the domicile, producing a permanent crime due to the prolongation of the antijuridical state.

Finally, our legislator configured an aggravated type when the act is executed with violence or intimidation. This violence or intimidation, as contemplated by the Supreme Court, can fall both on persons and things, as long as it is configured as a means for the execution of the typical fact(See Supreme Court Judgment No. 520/2017 of July 6, 2007).

3. The crime of usurpation

The crime of usurpation of property consists of the appropriation of a property with violence or intimidation provided that it does not constitute a dwelling, since otherwise, it would be punishable under Article 202 of the Penal Code, as a crime of breaking and entering.

The crime of usurpation is contemplated in Articles 245, 246 and 247 of the Penal Code, and in this section we will focus on the explanation of the crime of usurpation typified in Article 245, 246 and 247 of the Penal Code, and in this section we will focus on the explanation of the crime of usurpation typified in Article 245 of the Penal Code. Article 245 of the Penal Code.

Our legislator distinguishes two types of usurpation:

• In its first section (245.1 CP), it punishes the occupation by means of violence or intimidation of things or persons, or whoever usurps the legal power of a person over a thing belonging to another, with a prison sentence of 1 to 2 years(this violencebeingcomparable to that described above in the crime of breaking and entering).

• In the second section (245.2 CP), it typifies the unauthorizedoccupation of a property, dwelling or building belonging to others that do not constitute a dwelling or staying in them without the authorization of the owner, punishing such action with a fine of 3 to 6 months.This is what is known as peaceful usurpation of real estate. The Supreme Court established 5 requirements for this crime (See Supreme Court Judgment no. 800/2014 of November 12, 2.014):

1. a) Occupation without violence or intimidation, provided that it does not constitute a dwelling and that it is carried out with the intention of remaining there,
2. b) That the action can be qualified as a true occupation,
3. c) That the person who has carried out the action lacks legal title to legitimize such possession,
4. d) That the owner expresses that the occupation has been carried out without his consent before or after its occurrence and,
5. e) That the perpetrator does it knowingly in the absence of authorization of the property and its alienation, together with the alteration of the possession of the owner”.
   

In both cases, anyone can be the person who commits the criminal offense of usurpation. In this way, the offender must be in a non-legitimate position of dominion over the property, and it is consummated when the person enters the property with or without violence, without being the legal owner of the property, and normally the action requires a certain continuity in time, so it is classified as a permanent crime.

However, reference should be made to the distinction between the peaceful usurpation of real property typified in Article 245.2 and the crime of breaking and entering in Article 202.1 of the Penal Code. of the Penal Code. This distinction has been addressed by the Attorney General’s Office in its Instruction 1/2020, which states that the difference between these two crimes lies in the material object on which the typical action falls: while in usurpation the material object is the real estate, homes or buildings of others that do not constitute a dwelling, in the crime of breaking and entering, the material object is identified with the concept of dwelling ( See Instruction 1/2020, of September 15, of the State Attorney General’s Office, on criteria for requesting precautionary measures in the crimes of breaking and entering and usurpation of real estate).

4. Causes that could exempt from criminal liability in crimes of breaking and entering or usurpation.

There are different exemptions from criminal liability that exonerate all active subjects who are in some of the aforementioned situations and that could be applicable in cases of breaking and entering or usurpation, all of which are regulated in Article 20 of the Criminal Code.

The most common circumstances that could exempt from criminal liability in the actions of usurpation of real estate, or that to a greater extent could be applied in cases of peaceful occupation of real estate, could be the state of necessity for being in a precarious situation and having a real need for housing and acting in compliance with a duty or in the legitimate exercise of a right(for example, the police officer who enters a home before the commission of a criminal act inside it).

5. Guidelines for action in the event of a burglary or breaking and entering of a dwelling.

Encroachment and breaking and entering are very topical issues in our country, being one of the main fears of Spanish citizens, especially those who have second vacation homes, rent properties, or those who simply have a home. These criminal conducts acquire a certain upturn in the vacation periods, since many of the properties are uninhabited, being easier to usurp them or to break into them in such conditions.

Therefore, the legal team of NIETO ENRIQUEZ ABOGADOS PENALISTAS has established a series of guidelines for action in case of detecting the presence of outsiders in your home:

1. The first thing to do is to determine what type of real estate you are dealing with, whether it constitutes a dwelling or not.

• Notify the police authorities as soon as possible, informing them of the occupation.

• Immediately go to the police station to file a complaint, bringing all possible evidence collected, such as neighboring witnesses who may have witnessed the occupation, possible identification of the perpetrators, video surveillance cameras, etc.

• Time is crucial in this type of situation, since if you can prove that the squatters have been in your property for less than 48 hours, the police authority can evict them without a court order, as long as they manage to enter the property.

• Do not cut off supplies (electricity, water, gas, etc.), do not enter by force, and do not prevent entry to those who have already occupied your property, as these behaviors may constitute a crime (e.g., coercion).

• Obtain specialized legal advice.
  

As we can see, home invasions and break-ins are complex and difficult to manage, both legally and personally, so if you find yourself in a situation where you need legal advice in relation to crimes of illegal occupation and require the assistance of a criminal lawyer, in NIETO ENRIQUEZ ABOGADOS PENALISTAS we have a team of criminal lawyers specialized in crimes of illegal invasions and break-ins ready to look after your interests and assist you in everything you require.