Article 246 of the Spanish Criminal Code: altering boundaries and markers

Boundary disputes are among the oldest and the most bitter there are. A wall that creeps forward half a metre, a fence that appears shifted after a season, a stone marker no longer where it used to be: small facts in appearance that ruin relations between neighbours and that, once they reach court, are almost always brought as criminal complaints. Article 246 of the Spanish Criminal Code is the provision that decides whether this is an offence or a civil dispute.

If you are accused of moving a boundary marker: what article 246 CP says

Article 246.1 CP punishes anyone who alters the boundaries of municipalities or estates, or any kind of marker or landmark intended to fix the limits of properties or the demarcation of adjoining plots, whether in public or private ownership, with a fine of three to eighteen months.

Paragraph 2 adds the mitigated form: where the benefit obtained does not exceed 400 euros, the penalty is a fine of one to three months.

The first thing to fix is an absence: article 246 CP provides for no prison sentence in either paragraph. That changes how the case is defended. The realistic aim is not to avoid custody but to avoid conviction and, failing that, to bring the facts within paragraph 2 and to secure a daily fine unit proportionate to actual means.

What the prosecution has to prove

• An act of alteration. The verb is "alters": moving, shifting, removing or modifying the element that fixes the limit. No violence, occupation or permanence is required.
• That what was altered marks a boundary. Boundaries of municipalities or estates, or any kind of marker or landmark intended to fix the limits of properties or the demarcation of adjoining plots.
• That the property is another's and a real limit is affected. Altering a marker that delimits nothing, or that separates neither properties nor demarcations, falls outside the offence.
• Intent. Knowledge that the limit is being shifted and the will to shift it.

The first element is usually evidenced by photographs and by the complaint itself. The other three — what the moved element actually delimited, where the legal boundary lay, and with what intention the person acted — are the ground on which these cases are decided.

What is protected: public and private boundaries

The provision is deliberately broad as to its object. It speaks of boundaries of municipalities or estates, which covers both the limits between municipal areas and those of private plots, and of any kind of marker or landmark, a formula that is not exhausted by the classic stone: a post, a mark cut into rock, a materialised survey point or any element placed for that delimiting purpose will serve.

And it closes with a decisive clarification: whether in public or private ownership. Markers on a public track, a livestock route or publicly owned woodland are protected exactly as those of a private plot, and in such cases the complaint usually comes from the municipality or the public body that owns the land.

The 400 euro threshold: benefit, not value

Article 246.2 CP measures the mitigated form by the benefit obtained. It does not say the value of the land, or the loss caused, or the market price of the plot: it says the benefit obtained. That choice of wording is the real battleground of the case.

On rural land, a few metres of surface may represent an appreciable figure as land and a minimal amount as yield. On urban land the relationship may be reversed. Determining the benefit normally calls for an expert report establishing the surface actually gained, the use it was put to and the return attributable to it, and that expert evidence weighs more than any neighbour's testimony.

Note the parallel with article 247 CP, which punishes with a fine of three to six months anyone who, without authorisation, diverts public or private water from its course or from its natural or artificial reservoir, and reproduces the same threshold in its second paragraph: a fine of one to three months where the benefit obtained does not exceed 400 euros. The two provisions share a structure and share an evidential problem.

Intent: the line between an offence and a civil dispute

Article 246 CP contains no negligent form, and article 12 CP is categorical: negligent acts and omissions are punishable only where the law expressly so provides. It follows that someone who ploughs, fences or builds where they honestly believe their boundary lies does not commit this offence, even if they are objectively wrong.

That belief cannot be an abstract excuse. It is evidenced with documents: title deed and land registry description, segregation plans, licences, cadastral reference, earlier surveys, historical aerial photographs, boundary determination records, even the testimony of whoever placed the element. Where those materials show a reasonable disagreement about where the limit runs, the matter belongs to the civil courts.

One obvious point is often forgotten in these disputes: the cadastre serves a fiscal purpose and does not by itself confer ownership. Building a criminal accusation solely on a cadastral discrepancy is building it on sand.

The civil route: boundary determination and marking

The natural route for establishing where a disputed boundary runs is the civil one, through the actions for determination and physical marking of boundaries, which allow the limit to be fixed judicially and materialised on the ground with a surveyor.

For the defence this has two readings. The first is strategic: showing with evidence that a genuine civil dispute exists over the boundary undermines at the root the intent required by article 246 CP. The second is practical: an acquittal does not fix the boundary, and a conviction does not settle ownership either. Anyone who wants to close the conflict will sooner or later need the civil procedure.

Boundaries with usurpation and with criminal damage

Article 246 CP sits in Chapter V of Title XIII of the Criminal Code, alongside two figures with which it is often confused.

• Usurpation (article 245 CP). Its first paragraph punishes with one to two years in prison the occupation, with violence or intimidation against persons, of immovable property or the usurpation of another's real property right; its second paragraph punishes with a fine of three to six months the occupation, without due authorisation, of a property, dwelling or building that is not a home. What is punished there is the occupation, not the shifting of the limit. See our page on illegal occupation.
• Criminal damage (article 263 CP). Where what matters is not shifting the limit but destroying the element — pulling up the marker, knocking down the wall, burning the fence — the charge may move to criminal damage, punished under article 263.1 CP with a fine of six to twenty-four months, and with a fine of one to three months where the damage does not exceed 400 euros.

Getting the charge right is not a formality. The penalty, the jurisdiction and even the procedural route depend on it, and it is often the first point the defence has to contest in its pleadings.

Situations that reach the courts

• Fences and enclosures that appear shifted towards the adjoining plot after maintenance work.
• Farming operations that pull up or bury markers and push the line of cultivation forward season after season.
• Removal of markers on public tracks, livestock routes or publicly owned woodland.
• Enclosure works in residential developments that lean on the neighbour's wall and shift the axis.
• Disputes in irrigation communities over the movement of markers delimiting plots and water turns.
• Inheritances where plots were divided by word of mouth for decades and never registered separately.

What the defence looks at

• Where the legal limit lies. Title, land registry description, history of segregations and plans. Without an established limit there is no punishable alteration.
• What the moved element actually delimited. Many markers and fences indicate uses rather than ownership: livestock enclosures, irrigation lines or rights of way.
• The benefit obtained, quantified by expert evidence, in order to bring the facts within article 246.2 CP.
• Intent, contested with documentary evidence of a good faith disagreement and of a pre-existing civil dispute.
• Who physically did it. On land worked by third parties, the person who carried out the work and the person who ordered it do not always coincide.
• The daily fine unit, which is set according to means and should be documented before the hearing.

Most of these cases are better resolved by measuring than by testifying. To discuss a specific case, call us on 91 078 65 74 or see our page on illegal occupation and property offences.