Article 202 Spanish Criminal Code: Trespass of a Dwelling — Breaking and Entering (2026)

Article 202 of the Spanish Criminal Code (CP) defines the offence Spanish law calls allanamiento de morada — trespass of a dwelling, the closest Spanish equivalent to breaking and entering or home invasion. It protects the space where a person actually lives against non-consented entries and intrusions, and it is one of the most misunderstood offences in Spain: it is often invoked against squatters when it does not apply, and overlooked against owners and landlords when it does. As criminal defence lawyers specialising in trespass cases, we explain what Article 202 actually punishes, the exact penalties and the main lines of defence.

What Article 202 Says

The provision contains a basic offence and an aggravated form:

• Art. 202.1 — Basic offence: a private individual who, without living there, enters another person's dwelling or remains in it against the occupant's will is punished with 6 months to 2 years in prison.
• Art. 202.2 — Aggravated form: where the act is carried out with violence or intimidation, the penalty rises to 1 to 4 years in prison plus a fine of 6 to 12 months.

Two features of the statutory text are decisive. First, the offender must be a private individual who does not live in the dwelling — someone who shares the home cannot commit this offence. Second, the offence is committed both by entering and by remaining inside against the occupant's will, so a guest who refuses to leave when asked can also be liable.

What Counts as a "Dwelling": the Protected Interest

Article 202 sits in Title X of the CP, among the offences against privacy and the inviolability of the home, echoing article 18.2 of the Spanish Constitution. What the law protects is not ownership of the property but the privacy of whoever lives in it. Several practical consequences follow:

• A dwelling is a factual situation: the place where someone resides and carries on their private life, regardless of legal title. Spanish courts have treated as dwellings a hotel room while the guest occupies it, an inhabited caravan, a boat someone lives on or a room in a university hall of residence.
• The owner can be the offender: a landlord who enters a rented flat with a spare key, or a person who walks into the home where their ex-partner now lives, can commit the offence even though the property is in their name, because they do not live there and enter against the will of the person who does.
• An empty property is not a dwelling: if nobody lives in it, entering or occupying it is not trespass of a dwelling but, at most, usurpation under art. 245 CP, which carries far lighter penalties.

Entering and Remaining: the Two Prohibited Acts

The offence can be committed in two ways:

1. Non-consented entry: accessing the dwelling against the occupant's will. That opposing will does not need to be in writing or formally declared: it can be inferred from the circumstances, such as a locked door or the absence of any relationship justifying the access.
2. Remaining against the occupant's will: a person who entered lawfully — a visitor, a guest — and refuses to leave when asked commits the offence as well. The request to leave turns the continued presence into criminal conduct.

On the subjective side, the offence requires intent: knowing that the place is someone else's dwelling and that one is entering or staying against the occupant's will. The occupant's consent excludes the offence, and a large share of trials under Article 202 turn precisely on whether consent existed or whether the accused could reasonably believe they had it.

Penalties Under Article 202

Article 202 itself grades the punishment:

• Basic offence (202.1): 6 months to 2 years in prison. Because the maximum does not exceed 2 years, a first-time offender can generally apply for a suspended sentence.
• With violence or intimidation (202.2): 1 to 4 years in prison plus a fine of 6 to 12 months. Here suspension is no longer assured if the actual sentence exceeds 2 years, so whether the facts are charged under one paragraph or the other has direct consequences for going to prison.
• Public authority or official (art. 204 CP): where the act is committed outside the cases allowed by law and without a criminal-case legal basis, the penalty is imposed in its upper half plus absolute disqualification for 6 to 12 years.

As for the limitation period, both paragraphs carry maximum penalties below 5 years, so the offence becomes time-barred after 5 years (art. 131.1 CP). In addition, since Organic Law 1/2025 these cases can be processed through Spain's fast-track procedure, which significantly shortens the timeline where the offender is caught in the act or the investigation is straightforward — see our guide on squatting and property owners' rights in Spain.

How It Differs from Art. 203 and from Squatting (Art. 245)

Article 202 coexists with two neighbouring offences that are often confused with it:

• Art. 203 CP — Premises of legal entities and businesses: it protects the registered office of a public or private legal entity, professional practices and offices, and shops or premises open to the public. Entering against the owner's will outside opening hours carries 6 months to 1 year in prison plus a fine of 6 to 10 months (203.1); remaining there outside those hours, a fine of 1 to 3 months (203.2); and entering or remaining with violence or intimidation, 6 months to 3 years in prison (203.3).
• Art. 245 CP — Usurpation (squatting): it applies where the property is not a dwelling. Occupation with violence or intimidation against persons carries 1 to 2 years in prison on top of any penalties for the violence itself (245.1); peaceful occupation of a property, house or building that is not a dwelling, or remaining in it against the owner's will, carries a fine of 3 to 6 months (245.2). We analyse this offence in detail in our post on property usurpation under art. 245 CP.

The practical borderline is whether the property is a dwelling: the same conduct — entering someone else's property without permission — can be a crime punishable with up to 4 years in prison or an offence punished with a fine, depending on whether anyone lives there. In squatting cases, proving (or disproving) that the property was a dwelling is often the central evidentiary battle.

A different situation arises where someone breaks into the home in order to steal: that conduct is punished as robbery in an inhabited house under art. 241 CP, with 2 to 5 years in prison. Art. 241.2 itself treats as an inhabited house any shelter that constitutes the dwelling of one or more persons even if they happen to be away when the robbery takes place — the occupants being on holiday does not strip the home of protection.

Defence Strategies

1. Consent of the occupant: showing there was authorisation, express or implied, to enter or remain, or a sustained tolerance incompatible with the opposing will the offence requires.
2. The property was not a dwelling: if nobody carried on their private life there, the conduct is at most usurpation under art. 245.2 CP (fine of 3 to 6 months) — a radically different sentencing scenario.
3. No intent or mistake: a person who reasonably believes they have permission, or does not know the property is inhabited, lacks the intent the offence requires.
4. Challenging the violence or intimidation: downgrading the aggravated form of 202.2 to the basic offence of 202.1 lowers the penalty and reopens the door to a suspended sentence.
5. Compensation and negotiated pleas: repairing the harm (art. 21.5 CP) and a well-negotiated plea agreement can place the sentence at the legal minimum and avoid prison.

For a practical analysis — ex-partners with keys, landlord-tenant conflicts, squatters reporting owners for trespass —, see our complete guide to criminal defence in trespass and home invasion cases.