USURPATION

Arts. 245 to 247 of the Criminal Code regulate the crime of usurpation, which punishes conducts that infringe the right of possession or any other real right over real estate. In the following, we will see the different criminal modalities of this crime.

Violent occupation and usurpation

In the first place, Article 245 of the Penal Code punishes a person who occupies real property or usurps a real property right belonging to another, provided that he does so using violence or intimidation, with a prison sentence of 1 to 2 years (depending on the benefit obtained and the damage caused), without prejudice to the penalty that may be imposed for the acts of violence carried out.

Peaceful occupation

Secondly, art. 245.2 of the Penal Code punishes the person who occupies, without authorization, another person’s property, dwelling or building that does not constitute a dwelling, or stays therein against the will of its owner, behavior that carries a fine of 3 to 6 months. Thus, the so-called “squatters” are penalized by criminal law.

As established by the Supreme Court, in order to appreciate this crime, the following requirements must be met (STS No. 800/2014, November 12):

1. The occupation, without violence or intimidation, of a property that at the time does not constitute a dwelling, carried out with a certain vocation of permanence.
2. That this disturbance of possession poses a relevant risk to the victim’s possession of the property: occasional or sporadic occupations, with no vocation of permanence or of low intensity, are not constitutive of this crime.
3. That the author does not have a legal title that legitimizes such possession: if he has been authorized to occupy the property, even temporarily or as a precarious person, we will have to resort to civil proceedings.
4. That the will against the occupation on the part of the owner of the property, which must be express, is on record.
5. The perpetrator must have fraudulent intent, that is to say, he must act knowing that the property is owned by another person and that he lacks authorization to occupy it, and with the purpose of disturbing the possession of the owner of the property.

Alteration of terms or boundaries

Thirdly, through art. 246 of the Penal Code, the alteration of boundaries or limits of towns or land or any type of signs intended to fix the limits of properties or demarcations of contiguous land is also punishable by a fine of 3 to 18 months (or 1 to 3 months if the profit obtained does not exceed 400 euros).

Distraction of the water course

Finally, art. 247 of the Penal Code punishes the unauthorized diversion of water for public or private use from its course or from its natural or artificial reservoir with a fine of 3 to 6 months (or 1 to 3 months if the profit obtained does not exceed 400 euros).