Procuring Premises (Art. 187 bis CP): Profiting From Prostitution

Procuring premises (tercería locativa) is a specific form of the offence of pandering governed by Article 187 bis of the Spanish Criminal Code, introduced by Organic Law 10/2022. It consists of allocating a property, premises or establishment to favouring the exploitation of another's prostitution, with intent to profit and on a habitual basis. The line between simple lease (lawful) and procuring premises (an offence) is one of the most debated points of modern sexual criminal law. As criminal defence lawyers, we analyse the offence and the viable defences.

The Offence: Art. 187 bis CP

Article 187 bis specifically punishes procuring premises with prison of 1 to 3 years and a fine of 12 to 24 months, without prejudice to the closure of the establishment. It applies to anyone who, with intent to profit and habitually, allocates a property to favouring the exploitation of another person's prostitution, even with their consent. The consent of the person exercising prostitution is irrelevant where the element of exploitation concurs, identified with: abusive conditions compared to the market, the imposition of circumstances of subordination, or taking advantage of a situation of need or vulnerability.

Constituent Elements of Procuring Premises

1. Availability of a property. Whether owned or leased.
2. Real allocation to the exercise of prostitution. Proof that the property was actually used.
3. Disproportionate economic profit. Case law compares the rent charged with the market price.
4. Knowledge of the landlord. Direct or eventual intent.

Difference From Human Trafficking (Art. 177 bis CP)

The line with human trafficking for sexual exploitation is critical because the penalties soar: 5 to 8 years in the basic type of trafficking, against the 1 to 3 years of procuring premises. The essential difference is the initial coercive recruitment. In trafficking there is a "recruitment phase" through violence, intimidation, deceit or abuse. In procuring premises the victim already exercises and the exploiter intervenes by taking advantage, not by recruiting.

Criminal Defence of the Investigated Landlord

1. Absence of knowledge (invincible error of fact). Proving the landlord did not know and could not reasonably know the use of the property.
2. Market price. A real-estate expert report comparing the rent charged with equivalent properties.
3. Prostitution on own account. Proving the persons exercised without economic or labour dependence on the landlord.
4. Immediate cessation after warning. If the landlord, on suspicion, sought termination of the contract.
5. Nullity of evidence. Challenging searches without a court order.

Penalties and Ancillary Consequences

• Confiscation of the property and the proceeds obtained (Art. 127 CP).
• Civil liability for moral harm to the victims where exploitation is proven.
• Special disqualification from the accommodation or hospitality sector.