Lately, the concern of second home owners in Spain has grown because they have the feeling that in the case of a squatters occupation, they do not know what to do to recover their property as soon as possible.
Fortunately, the Supreme Court (judgment 587/2020, of November 5) already allows a complaint to be made for the crime of breaking and entering in the case of second residences that do not constitute the owner’s habitual residence, since there are aspects of privacy of the person in the occupation of a holiday home. Along the same lines, the recent Instruction No. 1/2020, of September 15, on action criteria for requesting precautionary measures in the crimes of trespassing and usurpation of real estate, issued by the State Attorney General’s Office establishes the possibility of adopting the precautionary measure for the immediate eviction from the property.
The precautionary measures are regulated in article 13 of the Criminal Procedure Law and it provides that the first steps to be taken are to record the evidence of the crime that may disappear, to collect and put into custody whatever leads to its verification and identification of the offender, to arrest, where appropriate, those presumed responsible for the crime and to protect those injured, being able to agree on a protection order provided for in article 544 ter of this law.
When the occupied house does not constitute the owner’s residence (not a first or second residence, but a plot or unconditioned house) we will find ourselves facing the crime of usurpation, so an assessment of the concurrent circumstances will have to be made (state of the occupied property, explanation offered by the occupants, carrying out activities in the property that may be harmful or dangerous, the owner’s need to urgently dispose of possession, etc.) in order to request the eviction.
If the precautionary measure of eviction had not been requested during the investigation phase, they must request the immediate eviction of the property and return of possession to the owner at the time of the trial. When there are humanitarian reasons that justify it in accordance with article 704 of the Civil Procedure Law, it may be of interest that the convicted person be granted a maximum period of one month to voluntarily evict him and otherwise proceed with forced eviction.