What is a home invasion? Everything you need to know

Criminal lawyers specializing in home invasion offenses

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

A key aspect to distinguish the different types of crime is the conception of the term ” dwelling “, which is addressed in the Supreme Court Judgment 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, including within said enclosure, endowed with special protection not only the rooms intended for cohabitation in intimacy, but also all annexes, adjacent or dependencies that constitute the environment of the private life of the inhabitants , indispensable for the development of said family intimacy , and which, if violated by the irruption, in them, of strangers, implies 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 sphere of privacy within the limited space that the person chooses and that is exempt from external invasions by other people or public authority.

Given its relevance, this fundamental right has also been recognized in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the European Convention on Human Rights, where the right of individuals to respect for their private life, without anyone being able to interfere in it, to their home and correspondence , is established, with protection under the 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 their privacy within it, protecting the most precious privacy of individuals, so that any interference in it constitutes a criminal act punished, in many cases, with prison sentences.

2. The crime of trespassing

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

• The first section of the aforementioned article (202.1 CP) punishes the individual who, not living there, enters or remains in another person’s dwelling against the will of its resident with a prison sentence of 6 months to 2 years.
  
• The second section of the aforementioned article (202.2 CP) increases the penalty of the first section, 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 legislation provides for two types of conduct: that which involves “entering another’s dwelling ,” an active action, and that of ” remaining in a dwelling without living there ,” an action of an omission nature. To understand the correct distinction between these concepts, each will be explained.

The term “ enter ” encompasses the action of entering a space designated as a dwelling. According to the RAE ( Royal Spanish Academy ), “ enter” is defined as “ passing from outside to inside .” Meanwhile, “ remaining without inhabiting the same ,” as previously mentioned, constitutes an omission, since it presupposes that the subject has entered. This modality requires prior consent to entry and its subsequent cessation, such that the resident authorizes entry initially, only to later cease their desire to consent to the stay.

Likewise, “ against the will of the resident ” refers to a type of entry in which the resident’s opposition must be clearly or implicitly stated. This action is contemplated in both types of trespass we have previously discussed (with or without violence or intimidation).

It should be clarified that the crime of trespassing is completed the moment the perpetrator enters another person’s dwelling or disobeys the occupant’s request to leave . This crime can continue over time, violating the inviolability of the home, thus becoming a continuing offense due to the prolonged unlawful state.

Finally, our legislator established an aggravated form of the offense when the act is committed with violence or intimidation . This violence or intimidation, as considered by the Supreme Court, can be directed against persons or property , provided it is used as a means to carry out the criminal act. ( See Supreme Court Judgment No. 520/2017 of July 6, 2017 ).

3. The crime of usurpation

The crime of usurpation of real estate consists of the appropriation of a property with violence or intimidation, provided that it is not a dwelling, since otherwise it would be punished according to the provisions of article 202 of the Penal Code, as the crime of trespassing.

The crime of usurpation is covered in articles 245, 246 and 247 of the Penal Code, and in this section we will focus on explaining the crime of usurpation as defined in 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 over 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 violence being comparable to that previously stated in the crime of trespassing ).

The second section (245.2 of the Penal Code) criminalizes the unauthorized occupation of a property, dwelling, or building belonging to another that does not constitute a residence, or remaining therein without the owner’s authorization, punishing such action with a fine of three to six months . This is known as the peaceful usurpation of real estate. The Supreme Court established five requirements for this crime (See Supreme Court Judgment No. 800/2014 of November 12, 2014).

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,
b) That the action can be classified as a true occupation,
c) That the person who has carried out the action lacks a legal title that legitimizes such possession,
d) That the owner states that the occupation was carried out without their consent before or after it occurred and,
e) That the author carries it out knowing the lack of authorization for the property and its ownership by others, coupled with the alteration of the owner’s possession.”

In both cases, anyone can commit the crime of squatting. The offender must illegitimately assume a position of control over the property. The crime is completed when the person enters a dwelling, with or without violence, without being the legal owner of that property. This action typically requires a certain degree of continuity over time, and is therefore classified as a continuing offense.

However, it is necessary to distinguish between the peaceful occupation of real estate, as defined in Article 245.2, and the crime of trespassing, as defined in Article 202.1 of the Criminal Code. This distinction has been addressed by the State Attorney General’s Office in its Instruction 1/2020, which establishes that the difference between these two crimes lies in the material object of the typical action: while in occupation the material object is real estate, dwellings, or buildings belonging to others that do not constitute a residence, in the crime of trespassing, the material object is identified with the concept of a residence. ( See Instruction 1/2020, of September 15, from the State Attorney General’s Office, on criteria for requesting precautionary measures in the crimes of trespassing and occupation of real estate).

4. Causes that could exempt from criminal liability in crimes of trespassing or usurpation

There are various exemptions from criminal liability that exonerate all active subjects who find themselves in some of the aforementioned situations and that could be applicable in cases of trespassing or usurpation, all of which are regulated in article 20 of the Penal Code.

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

5. Guidelines for action in the event of squatting or breaking and entering

Squatting and breaking and entering are highly topical issues in Spain, representing a major concern for Spanish citizens, especially those who own second homes, rent out properties, or simply have a residence. These criminal activities tend to increase during holiday periods, as many properties are left unoccupied, making them easier to squat or break into.

Therefore, the legal team at NIETO ENRIQUEZ CRIMINAL LAWYERS has established a series of guidelines to follow if you detect the presence of unauthorized persons in your home:

• The first thing you will need to do is determine what type of property it is, whether it constitutes a dwelling or not.

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

• Go immediately to the police station to file a complaint, taking all possible evidence gathered, such as neighbor witnesses who may have witnessed the occupation, possible identification of the perpetrators, video surveillance cameras, etc.

• Time is crucial in these situations, because if you can prove that the so-called squatters have been in your property for less than 48 hours, the police can evict them without a court order, provided they manage to enter the property.

• Do not cut off utilities (electricity, water, gas, etc.), do not force entry, nor prevent entry to those who have already occupied your property, as these actions may constitute a crime (for example, the crime of coercion).

• Obtain specialized legal advice.

As we can see, squatting and breaking and entering are complex and difficult to manage, both legally and personally. Therefore, if you find yourself in a situation where you need legal advice regarding illegal occupation crimes, at NIETO ENRIQUEZ CRIMINAL LAWYERS, criminal lawyers in Barcelona , ​​we have a team of criminal lawyers specializing in illegal squatting and breaking and entering crimes, ready to protect your interests and assist you in everything you require.